VOLUME 1: ISSUE 2
|| APRIL 2019 ||
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ABOUT US
WHITEBLACKLEGAL is an open access, peer-reviewed and refereed journal provide dedicated to express views on topical legal issues, thereby generating a cross current of ideas on emerging matters. This platform shall also ignite the initiative and desire of young law students to contribute in the field of law. The erudite response of legal luminaries shall be solicited to enable readers to explore challenges that lie before law makers, lawyers and the society at large, in the event of the ever changing social, economic and technological scenario.
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WHITE BLACK LEGAL: THE LAW JOURAL
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CONTENTS
S.No. Title Author(s) Page No. 1 ASPECTS OF DOWRY DEATH UNDER M Sri Atchyut 07 SECTION 304 B OF INDIAN PENAL CODE, 1860 AND OTHER VARIOUS LAWS RELATING TO DOWRY PROHIBITION 2 WOMAN AS A KARTA: A detailed analysis on CHILUMULA NANDITA 20 its twisted roots. SHRADDHA REDDY 3 Sustainable Development Goals and Smart Cities Vishnu Sudarshan P 30 Prattay Lodh 4 “LEGAL PROTECTION OF THE M.Santha Kumari 44 TRIBES”VALIDITY OF THE LAWS OF THE VULNERABLE, RIGHTS VS. REALITY: 5 HUMAN RIGHTS OF SEX WORKERS : Alivya Sahay 55 WHERE HAVE WE BEEN LACKING 6 Criminality, consent and Euthanasia Naimish Tewari 66 7 MISERABLE LIFE OF CHILDREN WHO GOT Sunil Kumar Mishra 77 DISABLED DUE TO WAR CRISES 8 Amendment in Section 377 of IPC and its Rishabh Agrawal 89 Ramifications Priyanshu Pawaiya 9 Effects of Mistake as to law according to the Milind Rajratnam 99 Indian Contract Act, 1872 Mitali Kshatriya 10 mental health law in India kirty ranjan rani 111 11 JOSEPH SHINE V. UNION OF INDIA- ANKIT MITTAL 118 CRITICAL REVIEW 12 Legalization of Physician-Assisted Suicide (PAS) PURUNJAI TEWARI 122 and euthanasia: An Indian perspective 13 Smell Mark-- Need for Reformation as a Trade Adhithyan.C 131 Mark 14 Mental health of women in India: A human rights Talin Bhardwaj 142 perspective Ishan Khare 15 Coalition government and its impact on federal Amrita Mishra 155 structure 16 INTERCOUNTRY CHILD ADOPTION WHO Deepanshu Paul 166 MUST ADOPT, WHAT IS IN THE FOREMOST INTEREST OF THE CHILD OR THE FAMILY ADOPTING 17 Judicial Activism: Are we marching towards a Arnab Chakraborty 181 worthier society? 18 LEGAL STATUS AND RIGHTS OF WOMEN Dhikshana Subburaj 190 IN INDIAN CONSTITUTION 19 ANALYSING DELAYS IN THE CRIMINAL Shubhaankar Ray 197 ADJUDICATION PROCESS WITH SPECIAL EMPHASIS ON THE RIGHTS OF THE VICTIM 20 International Crimes: Definition, Elements, Aifoona Punnaram 207 Essential Features
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21 LEGAL STATUS TO ANIMALS IN Shivansh Sharma 217 UTTRAKHAND, PUNJAB AND HARYANA, AND IT’S IMPORTANCE 22 national and international commercial arbitration: Heena jain 225 a juxtaposition 23 Non Partisan Media- Linchpin of Democracy Raksha H R 242 Nikhil N Bhonsle 24 Rajdharma in providing Right to health Anshika Juneja 248 Amisha Rerru Singh 25 Social response Towards Homosexuality and Ambika Dilwali 263 Third Gender Jurisprudence in India 26 Prison Cell: A place of rehabilitation or torture? Manasvi Bhatt 275 27 NEED FOR REGULATION IN IRREGULAR PAVAN KUMAR R 284 MIGRATION FROM INDIA TO THE EUROPEAN UNION (EU) 28 PROSTITUTION-AN UNRECOGNISED JOB Manu Tiwari 295 Nivedita 29 Male Sexual Assault in India: An Ignored Kanika Chugh 305 Concern 30 CONSTITUTION - AN ETERNAL LIVING Anshika Juneja 314 ORGANISM FOR INDIAN WOMEN 31 Justice K.S. Puttaswamy and another vs Union of Anukriti 324 India and others writ petition (civil) Number. 494 of 2012 32 INTERNATIONAL LAW GOVERNING Siddhant Nanodkar 329 RIVERS AND TRANSBOUNDARY USAGE
33 RELIGIOUS OUTLOOK TOWARDS LGBT Rashi Jha & 341 COMMUNITY Shriya Rastogi
34 “Restraint on Legal Proceedings by Contract” Ravi Singh Chhikara 353
35 'CAN ARTICLE 370 BE SCRAPPED? - A Tanuj Dewan & 359 LEGAL ANALYSIS Tushar Seth
36 POOR ACCESS TO RIGHT TO HEALTH IN Pooja Gurjar 369 INDIA
37 THE ADMISSIBILITY OF EXPERT Satyajit Lonkar 375 EVIDENCE IN INDIAN JUDICIAL SYSTEM
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ASPECTS OF DOWRY DEATH UNDER SECTION 304 B OF INDIAN PENAL CODE, 1860 AND OTHER VARIOUS LAWS RELATING TO DOWRY PROHIBITION
ABSTRACT The concept of the Dowry Death in general refers to the murder or suicide of a married woman caused by a dispute over her dowry. The dowry death as an offence punishable under the Indian Penal Code under specific sections, there under. The offence of Dowry Death will constitute to be so, only when it satisfies certain features that is the death of the women should have occurred within seven months of her marriage and the death should be caused by the burns or bodily injury. Before the word has been added into laws it was the custom which was followed in past where the bride used to take the dowry for the husband. The word ‘Dowry’ has also been defined under the Dowry Prohibition Act, 1961 and there are certain guidelines provided i.e. The Dowry Prohibition Rules, 1998.
In this study there are certain issues raised which are as follows: 1. Whether the dowry death is a punishable offence or not? 2. Whether are there any penalties for taking or giving dowry? 3. Whether the dowry taken by the wife is the benefit for her or for her legal heirs?
And some other issues which are answered in the later part of paper with the help of precedents. The Dowry Prohibition Act, 1961 and The Dowry Prohibition Rules, 1998 are discussed, in an attempt to draw the rightful interpretation. The methodology followed is also discussed and the objective of writing this paper i.e. to understand and reiterate that Dowry Death is an offence under the IPC and is punishable either with fine or imprisonment or with both basing on the crime that a person commits he/she will be charged. And to conclude whatever has been written has been provided with the references to avoid plagiarism.
INTRODUCTION
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1 History and Background of Dowry Death-
During the pre-colonial period, ‘Dowry’ is an establishment or the foundation which was managed by women and for women. It was to enable the women to ascertain their status and have an alternative in at the time of emergencies. "In this ancient system of dowry, the parents of the bride, even her kith and kin, all gave wealth to her in the form of valuable gifts etc. Even before Dowry Death was an offence it was a custom practiced by almost every family in the society. The dowry is given to the daughter in either form i.e. movable or immovable property because she was not entitled for a share in joint family property. Dowry is the amount of property or money brought by a bride to her husband on their marriage. Dowry Death means murder or suicide of a married woman caused by a dispute over her dowry. It will occur on the basis of certain reasons. Today ‘Dowry’ is still a serious problem. Nowadays, cash, gold, movable and immovable property utility articles and non-material goods from a part of the package deal under the label of dowry. In additions, various forms of payments to the in- laws of the bride continue even after the marriage. To sum up, it is very evident that in most the brides are young, dependent and not very well-informed. So, such emergencies also take place in the early years of marriage, lastly, the deaths are camouflaged either as accidents or suicides. Furthermore, the procedural laws are significantly custom-made in empowering the Executive Authorities and Judicial Tools to act effectively in an efficient way under the Dowry related crimes. The punishments provided have been made deterrent. Organizations of social workforces and voluntary organizations in the process of enforcement of statutorily provided legal assistance which was guaranteed through the legal aid support groups and Dowry Prohibition Offices. Dowry is a curse upon our society and many innocent women lose their lives because of prohibited and forbidden ‘Demand for Dowry’. The provisions dealing with Dowry Death have been outlined and enshrined in a way that raises a presumption against the accused if certain minimum requirements are encountered. Accepting or harassing the bride or her parents for ‘Dowry’ is a punishable offence under the IPC- Indian Penal Code, 1860.
DOWRY DEATH – MEANING AND DEFINITIONS-
1 Kudrat, A Critical Overview of Offences Against Women Under The Indian Penal Code, AmityLawSchool, Delhi, https://www.lawctopus.com/academike/critical-overview-offences-women-indian-penal-code/
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Dowry Death: According to the Dictionary meaning - Dowry Deaths are the Deaths of Women who are killed or forced to commit suicide by continuous harassment and torture by husbands and in-laws in an effort to extort an ‘Increased Dowry’. Dowry Death according to IPC, 1860 The offence of Dowry Death is as defined under section 304 – B2 of the Indian Penal Code (IPC), 1860 it reads as follows: There is a difference between ‘Dowry’ and ‘Stridhan’ which has been discussed in the case Pritam Singh v. State of Delhi3. Dowry death is an offence under the IPC. The Apex court in the case of Reema Agarwala v. Anupam4 defined the word ‘Dowry’. The word ‘Dowry’ in Section 304 B of the IPC, 1860 has to be understood as it is defined in Sec.2 of the Dowry Prohibition Act. In the landmark judgment of Reema Agarwala v. Anupam,5 the Hon’ble Supreme Court gave and held the meaning of dowry. The concept of ‘Dowry’ is connected with a marriage and the provisions of the Dowry Prohibition Act, 1961 will apply to the acts which form in relation to marriage. Definition of Dowry as under the Dowry Prohibition Act, 1961:
“dowry means any property or valuable security given or agreed to be given either directly or indirectly: by one party to a marriage to the other party to the marriage; or by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person; at or before or any time after the marriage in connection with the marriage of said parties but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.”
Issues of the Study:
2Section 304 B Dowry Death — “(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or har¬assment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death....” 3 Pritam Singh v. State of Delhi - 2000 (4) RCR (Cr.) 566 (Del.).
4 Reema Agarwala v. Anupam - 2004 (3) SCC 1999 5 Reema Agarwala v. Anupam - AIR 2004 SC 1418
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1) Whether the death occurred under un-natural circumstances and death occurred is a result of homicide or suicide- material. Whether the death occurred in such manner amounts to Dowry Death or not? 2) Whether cruelty is a common essential for both the Sections in the IPC? 3) The views of Hon’ble Supreme Court on Section 304-B of The Indian Penal Code, 1860.
Issues for the Analysis of the Offence Of Dowry Death: 1) Whether the dowry death is a punishable offence or not? 2) Whether are there any penalties for taking or giving dowry? 3) Whether the gifts before or after the marriage or at the time of marriage come with in the purview of the definition of the Dowry? And if not are there any limitations on the quantity and kinds of the gifts. Whether the quantity and kinds depend upon the financial status and financial resources of the family.
Objectives of the Analysis: 1. There are certain objectives for writing this analysiswhich are as follows: 2. Teaching the students at college level about values, human rights, constitutional rights, mutual respect co-operation and understanding and so on. 3. To propagate the laws through print and electronic media, plays, skits. 4. Spreading legal literacy through legal service authority and having legal aid cells in colleges for legal aid. 5. To sensitize the police to be citizen friendly and deal with cases with a human touch and in an appropriate manner. Sensitizing members of Sub-ordinate Judiciary. 6. To prove that people committing the crime will be punished. 7. To show that according to the present-day scenario Dowry is no more a custom and is punishable offence under IPC, 1860 and Indian Evidence Act. 8. To show that Dowry Death is Punishable Offence under section 304 – B of IPC. Dowry Death is neither accepted by law nor by the individuals/persons in the society. The final objective of writing this analysis is to show that Dowry Death can be prevented when certain measures are taken such as, Awareness that it an offence, Education about such offences, Rigorous and Stringent Punishments and Speedy Trials and the Application of the Law must be strengthened. Therefore, by reading the above-mentioned objectives intention of the researcher can be understood. Dowry Death is a Punishable Offence and there are certain laws which are pertaining to Dowry i.e. Dowry Prohibition Act, 1961 and there are also certain rules provided by the Law to avoid such offences through which an aggrieved party can relived by committing such type of offences.
Page | 10 LITERATURE REVIEW: The Literature Review is the critical analysis of the information/data/records/statistics regarding the research study. In respect to the present study the literature review will indicate that how the conceptual and legal analytical view has been given to the research issues. It shows that how research study is a broad and critical review of the research topic. In this study the Analysis of the Offence of Dowry of Section 304-B of the Indian penal Code, 1860 is discussed in-detail and is taken from the book The Indian Penal Code,1860 written by Ratanlal and Dhirajlal. The research study includes substantial findings about the Dowry Death and Dowry Prohibition Act, 1961 and Dowry Prohibition Rules, 1998. In the present study the information has been taken from various Books, Articles, and Journals and has been referred to various case laws and Decisions of the Hon’ble Supreme Court and other High Courts. 1. Ratanlal and Dhirajlal, Indian Penal Code, 1860 – IPC – (33) (2012) &P. S. A. Pillai, Criminal Law – (7) (2010) This book is of the major sources of information collected for this research analysis. The language used by the author was easy to refer to and understand without any complications. This book was used to understand the concept of the section 106 of (TOPA) Transfer of Property Act, 1882. 2. Hemendranath Reddy and Manohar Gogia, Marriage and Divorce Law – (6) (2013) This book helped in understanding the concept of Section 304-B of the IPC, 1860. This book also helped in examining in detail about concepts of Section 304-B of the Indian Penal Code (IPC), 1860. A. Gauri Goburdhun, Dowry Deaths — Practiced by Traditions, Forbidden by Law- This research article helped in getting the vision and main aim in order to achieve the object of writing this analysis on the concept Dowry Death as an Offence. It also helped to understand the concept with view of the respective section of the act. The research study has also been written with reference to other articles to understand the “Analysis of Dowry Death as an Offence”- Essentials and Punishment as prescribed and Presumptions under this section which are namely: B. PragneshParamar, Dowry Death and Law – Indian Scenario. C. Kudrat, A Critical Overview of Offences Against Women Under The Indian Penal Code. D. Mr. Abhishek, Bride Burning and Dowry System in India Manupatra and SCC online have been referred to understand the various precedents wherein the schemes of the section along with its limitations are examined very effectively.
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EXPLANATION AND BRIEF OF ISSUES
Issue- Whether the dowry death is a punishable offence or not?
Section 304 B6 of Indian Penal Code, 1860 Dowry Death
Indian penal code defines Dowry Death –
One of the important ingredients for the section to attract the ‘Dowry Death’ is that the death of the bride must relate to the cruelty or harassment on account of demand for dowry. The word ‘cruelty’ is not defined under Section 304 – B of IPC, 1860 for that purpose Section 498 – A of IPC, 18607 must be referred. However, under explanation of Section 113-B of the Evidence Act, by which the act of Presumption of Dowry can be drawn or is drawn, is provided as act of ‘cruelty’ and shall have the same meaning as under the Section 498-A of the Indian Penal Code, 1860. As per requirement of clause (b) appended to Section 498-A I.P.C., 1860 there must be a nexus between harassment and any unlawful act of ‘Demand for Dowry’.
Essentials8 of Dowry Death Section 304 – B of IPC, 1860:
To invoke Section 304B9 of the Indian Penal Code the following ingredients are essential: 1. ‘The death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances.’ This was discussed in the case ofAkula Ravinder V. State of AP10. 2. ‘Such a death should have occurred within seven years of her marriage’ - This was discussed in the case ofArbind Kumar Ambasta and Two Ors. v. State11. 3. ‘She must have been subjected to cruelty or harassment by her husband or any relative of her husband.’ 4. ‘Such cruelty or harassment should be for or in connection with the demand of dowry’ - This was decided in the case of G. A. Mohd. Moideen v. State of TN12.
6 supra note 3 7 Indian Penal Code, 1860 (Act no. 13 of 2013) 8Ratanlal and dhirjlal, Indian Penal Code, 1860 Lexis Nexis, Nagpur (33rd ed. 2012) pp. (616 &619) 9Ratanlal and dhirjlal, Indian Penal Code, 1860 Lexis Nexis, Nagpur (33rd ed. 2012) pp. (616,617,618) 10AkulaRavinderV.State of AP - AIR 1991 SC 1142 11Arbind Kumar Ambasta and Two Ors. vs. State - (2002) CriLJ3973 (Jhar) 12 G. A. Mohd. Moideen V. State of TN - (2000) Cr LJ 4355 (Mad)
Page | 12 5. ‘Such cruelty or harassment is shown to have been meted out to the woman soon before her death.’ In the case of Smt. Shanti and Anr.v. State of Haryana13. The Hon’ble Supreme Court had explained and elaborated all the essentials in detailed therefore a careful analysis of Section
14 304 – B shows that all the above-mentioned essentials are required.
15 Punishments Indian Penal Code, 1860 reads as– “Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life”. Punishment which is classified as: - ‘Cognizable and Non- Bailable and such offences are triable by the Court of Sessions, they are Non – Compoundable in nature.’
16 Presumption as to Dowry Death
Dowry Death in the code stated that Ratanlal and Dhirajlal stated that: - ‘When the question is regarding whether a person has committed the offence of dowry death of a women and that it is to be shown that the death of woman has been instigated by such persons by subjecting to cruelty or harassment or it can be in the connection with demand for dowry and therefore, the court may presume that such a person had caused the Dowry Death’.
17 In the case of State of Punjab v. Iqbal Singh Para- 8 “The Supreme Court clarified the position as to why the necessity to introduce Section 113-B in the Indian Evidence Act was felt – The legislative intent is clear to curb the menace of dowry deaths, etc. with a firm hand. It must be remembered that since crimes are generally committed in privacy of residential houses and in secrecy, independent and direct evidence is not easy to get. That is why the legislature has by introducing Section 113-B in the Evidence Act tried to strengthen the prosecution hands by permitting a presumption to be raised if certain foundation facts are established and the unfortunate event has taken place within seven years of marriage. This period of seven years is considered to be the turbulent
13Smt. Shanti and Anr. vs. State of Haryana - AIR 1991 SC 1226 14 Ibid – In the judgment while discussing the ingredients in the case the Hon’ble Supreme Court had an occasion to mention that the causing of a ‘fatal injury’ will not be an essential ingredient or will not form the part in committing the offence under the Section 304 B of the Indian Penal Code, 1860. 15 Indian Penal Code, 1860 (Act no. 13 of 2013) 16Ratanlal and dhirjlal, Indian Penal Code, 1860 Lexis Nexis, Nagpur (33rd ed. 2012) 17 State of Punjab v. Iqbal Singh – (1991) 3 SCC 1
Page | 13 one after which the legislature assumes that the couple would have settled down in life. When the question at issue is whether a person is guilty of dowry death of a woman and the evidence discloses that immediately before her death she was subjected by such person to cruelty and/or harassment for, or in connection with, any demand for dowry. Section 113-B, Evidence Act provides that the court shall presume that such person had caused the dowry death. A conjoint reading of Section 113-B of the Act and 304-B I.P.C., 1860 shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the death occurring otherwise than in normal circumstances. Soon before is a relative term and it would depend upon circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period soon before the occurrence. There must be existence of a proximate and live link between the
18 effect of cruelty based on dowry demand and the concerned death”
DOWRY PROHIBITION ACT, 1961
19 Issue- Whether are there any penalties for taking or giving dowry?
Definition of `dowry’20 under the Dowry Prohibition Act, 1961: In this act, “dowry means any property or valuable security given or agreed to be given either directly or indirectly: “(a) by one party to a marriage to the other party to the marriage; or by the parents of either party to a marriage or (b) by any other person, to either party to the marriage or to any other person; at or before or any time after the marriage in connection with the marriage of said parties but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat)
21 applies”.
The Supreme Court in the case of State of Himachal Pradesh v. Nikku Ram22Interestingly the judgment started with the words of ‘Dowry, Dowry and Dowry’. The Hon’ble Supreme 18 Ibid – pp. 9-10 19Hemendranath Reddy and Manohar Gogia, Marriage and Divorce Law, ALT, Hyderabad (6th ed. 2013), pp. (354, 355, 356, 359, 378). 20The Dowry Prohibition Act, 1961, (Act No. 28 of 1961) 21Ibid 22State of Himachal Pradesh v. Nikku Ram – (1995) 6 SCC 219
Page | 14 Court went on to explain why it has mentioned and observed thus: “The words ‘dowry’ thrice. This is because demand for dowry is made on three occasions: (i) Before marriage; (ii) At the time of marriage; and (iii) After the marriage.” “The Supreme Court has explained in this case that though the definition of ‘dowry’ is stated as ‘property or valuable security given or agreed to be given…’ demands made after marriage could also be a part of the consideration because an implied agreement has to be read to give property or valuable securities, even if asked after the marriage as a part of consideration for the marriage when the Dowry Prohibition Act, 1961 was enacted, the legislature was well aware of the fact that demands for dowry are made and indeed very often even after the marriage has been solemnized and this demand is founded on the factum of marriage alone. Such demands, therefore, would also be in consideration for
23 marriage……”
Issue- Whether the gifts before or after the marriage or at the time of marriage come with in the purview of the definition of the Dowry? And if not are there any limitations on the quantity and kinds of the gifts. & Issue- Whether the quantity and kinds depend upon the financial status and financial resources of the family?
The definition of Dowry has wide connotations as it means property and valuables security as defined in Section 30 of IPC, 1860 includes ‘property or valuables security agreed to be given either directly or indirectly. However, certain presents can be given to the bride and the bridegroom. However, to prevent the parties from circumventing the law. Rule 3 is incorporated in the Dowry Prohibition Rules, 1998. The said rule postulates that the lists prepared shall contain the particulars of presents with description and approximate value and the name of the person by whom the present is received and his/her relationship to the bride/ bridegroom and also the thumb impression/signature of the bride/bridegroom. As per this rule the price each present shall not exceed Rs. 200 and the presents of both the bride and bridegroom shall not exceed Rs. 75’.
23 Ibid - pp. 220- 223
Page | 15 However, it is pertinent to note the decision of the Hon’ble SC Satvir Singh and Ors. v. State of Punjab and Ors.24 Wherein it was observed as follows: “Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is "at any time" after the marriage. The third occasion may appear to be an unending period. But the crucial words are "in connection with the marriage of the said parties". This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment
25 of money or giving property as between the spouses” For Customary payments also the Hon’ble Supreme Court has given the limit for Dowry26. The said decision was followed in later decisions of the Hon’ble Supreme Court
27 Dowry Prohibition Rules, 1998 Under the Dowry Prohibition Rules, 1998 Stridhan means the presents made or given to newly wedded bride. Stridhan does not come under the purview of Dowry Prohibition Act, 1961. List of Presents given to the bride shall be maintained by the bride and list of the presents given to the bridegroom are maintained by the bridegroom. No person shall give or abet the giving or taking Dowry. Deny Conjugal Rights on the ground that Dowry has not been given or the given Dowry is insufficient. Every complaint under these rules shall be made by the person themselves or another person on behalf of them. Any complaint shall be made either on the demand of dowry or accepting dowry within a period of one year. Any complaint beyond this period shall not entertain. Powers and Functions of Dowry Prohibition officers appointed under the rules: Government shall have power to appoint either Revenue Divisional Officer or Sub Collector and they are conferred with the powers to register cases examine the witness investigate cognizable offences arrest if a prima facie case is made out power to send the accused to remand within twenty-four hours. All the civil cases under the act shall be dealt with the dowry prohibition officers. All criminal matters shall be dealt by the police department.
24Satvir Singh and Ors.v. State of Punjab and Ors. – (2001) 8 SCC 633 25 Ibid p. 636 26 Ibid, see – For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of "dowry". Hence the dowry mentioned in Section 304B should be any property or valuable security given or agreed to be given in connection with the marriage” p. 636 27Hemendranath Reddy and Manohar Gogia, Marriage and Divorce Law, ALT, Hyderabad (6th ed. 2013), pp. 389-393
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“The selected views of Hon’ble Supreme Court on Section 304-B of the Indian Penal Code, 1860 and the relevant judgment extracts are as under.”
28 1. Uday Chakraborty and Ors. v. State of West Bengal In the present case while deciding on merits the court held as follows- “Trial Court convicted all the five accused persons i.e. the husband and other in-laws for an offence punishable under Sections 304B/498A of the Indian Penal Code (hereinafter referred to as ‘IPC’) and sentenced them for 7 years rigorous imprisonment. No separate sentence was awarded under Section 498 A of IPC on the ground that the accused persons were awarded sentence for the substantive offence of murder under Section 304B of IPC. Finally, the Court dismissed the appeal and held that offence under Sections 304B read with 498A of IPC was made out and had been proved by prosecution beyond any reasonable doubt. The Court stated that execution of the “Chuktiparta” itself demonstrate that there was a clear intention on the part of the appellants to take dowry in and as consideration for marriage. Gifts were given at the time of marriage and some items were also agreed to be given subsequent to the marriage. This itself would be an appropriate fact to be taken into consideration and is, in any case, completely in line with the case of the prosecution. The Court observed that the expression ‘soon before her death’ has to be given its due meaning as the legislature has not specified any time which would be the period prior to death, that would attract the provisions of Section 304B of IPC. The concept of reasonable time would be applicable, which would primarily depend upon the facts of a given case, the conduct of the parties and the impact of cruelty and harassment inflicted upon the deceased in relation to demand of dowry to the cause of unnatural death of the deceased. In our considered view, the marriage itself has not survived even for a period of two years; the entire period would
29 be a relevant factor in determining such an issue.”
Therefore, considering the above the Hon’ble Supreme Court held that “The minimum sentence provided under law for an offence under Section 304B of IPC is 7(seven) years of rigorous imprisonment and that is the sentenced awarded by the High Court. Thus, the question of accepting this contention, raised before this Court, does
28Uday Chakraborty and Ors. v. State of West Bengal– (2010) 7 SCC 518 29 Ibid pp. 519 & 524
Page | 17 not arise even for consideration. For the above-mentioned reasons, we find no merit in the
30 appeal and hence, the appeal is dismissed.”
31 2. Baijnath and Ors. V. State of Madhya Pradesh “The court also held that the factum of unnatural death in the matrimonial home and that too within seven years of marriage, therefore, is thus ipso facto not sufficient to bring
32 home the charge under Sections 304B and 498A of the Code against them”. “A two-judge bench of the Supreme Court has reiterated that one of the essential ingredients of dowry death under Section 304 B of the Penal Code is that the accused must have subjected the woman to cruelty in connection with demand for dowry ‘soon before her death’ and that this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the court will presume that the accused has committed the offence of dowry death under Section 113B of the Indian Evidence Act. A bench comprising Justice Dipak Misra and Justice Amitava Roy acquitted accused in-laws in a dowry death case, holding that the prosecution failed to prove this indispensable component of Sections 304B and 498A
33 of the Penal Code beyond reasonable doubt.”
34 3. Singh @ Partap v. State of Haryana The Hon’ble Supreme Court in the Case of Sher Singh @ Partap v. State of Haryana held that Here the court stated that the prosecution must prove the fact that the ingredients must are present and such ingredients should be proved by the prosecution beyond the reasonable doubt. It is stated as initial burden to prove preponderance of probabilities and here at the same time it is also stated that the accused has the burden to show that he is not involved in such
35 offence.
30 supra note 29, p. 525 31Baijnath and Ors. V. State of Madhya Pradesh, (2017) 1 SCC 101 32 Ibid p. 103 33 Supra note 32, p. 110 34 Sher Singh v. State of Haryana,- (2015) 3 SCC 724 35 Ibid 724 – 727 See – the second paragraph of the page no. 724 of the judgment which states as – “requiring the prosecution to prove these ingredients beyond reasonable doubt would defeat the purpose of the section 304- B of the IPC, 1860 and one such initial burden is discharged by the prosecution it is that presumption of innocence of accused would get replaced by the deemed presumption of guilt of the accused and burden would then be shifted on to the accused to rebut that deemed presumption of guilt by proving beyond reasonable doubt his innocence.”
Page | 18
CONCLUSION:
The concept of Dowry is followed as customary practice during the olden days before it was included in the code as an Offence. And it is the only section in which intention or knowledge is not criteria. The concept of Dowry in present day scenario is neither accepted by the Law nor by the individuals in the society. For this concept the financial position/status must be referred to. To prevent committing of such offences there are certain guidelines provided in the Dowry Prohibition Rules, 1998. In this study certain questions were raised regarding Dowry Death and the same questions were answered with supportive case laws. To conclude the meaning of ‘Dowry Death’ can be understood as the death of a woman is caused by any burns or bodily injury. Under the (IPC) Indian Penal Code, 1860 the Dowry Death is an Offence. It is explained under the Section 304 – B of the IPC, 1860 where there are certain essentials they must be satisfied in order to constitute such an offence. The concept has also been supported by the case laws related to the topic. The word ‘Dowry’ is mentioned in Dowry Prohibition Act, 1961 as per the act it is defined as `dowry’ means any property or valuable security given or agreed to be given either directly or indirectly: by one party to a marriage to the other party to the marriage; or by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person; at or before or any time after the marriage. The research methodology adopted ahs also been explained in detail and each topic has been provided with references for the purpose of understanding. Therefore, to conclude by considering the precedential guidance it is understood that ‘Dowry Death’ is a punishable offence under the Indian Penal Code, 1860 and the laws provide for punishments for the persons involving in such offences. The law also provides for the guidelines at the same time in order to prevent the offenders from committing such offences as discussed above.
Page | 19
LIST OF REFERENCES
LIST OF CASES: 1. Pritam Singh v. State of Delhi - 2000 (4) RCR (Cr.) 566 (Del.). 2. Reema Agarwala v. Anupam - 2004 (3) SCC 1999 3. Reema Agarwala v. Anupam - AIR 2004 SC 1418 4. AkulaRavinderV.State of AP - AIR 1991 SC 1142 5. Arbind Kumar Ambasta and Two Ors. vs. State - (2002) Cri LJ 3973 (Jhar) 6. G. A. Mohd. Moideen V. State of TN - (2000) Cr LJ 4355 (Mad) 7. Smt. Shanti and Anr. vs. State of Haryana - AIR 1991 SC 1226 8. State of Punjab v. Iqbal Singh – (1991) 3 SCC 1 9. State of Himachal Pradesh v. Nikku Ram – (1995) 6 SCC 219 10. Satvir Singh and Ors. v. State of Punjab and Ors. – (2001) 8 SCC 633 11. Uday Chakraborty and Ors. v. State of West Bengal – (2010) 7 SCC 518 12. Baijnath and Ors. V. State of Madhya Pradesh, (2017) 1 SCC 101 13. Sher Singh v. State of Haryana,- (2015) 3 SCC 724
BOOKS: 1. Ratanlal and Dhirajlal, Indian Penal Code, 1860, Lexis Nexis, Nagpur (33rded. 2012). 2. P. S. A. Pillai, Criminal Law, Gogia Law House, Hyderabad, (7th ed., 2010). 3. Hemendranath Reddy and Manohar Gogia, Marriage and Divorce Law, ALT, Hyderabad (6th ed. 2013).
Page | 20
Woman As A Karta: A Detailed Analysis On Its Twisted Roots
*C Nandita Shraddha Reddy
ABSTRACT
The genesis of the Hindu Succession Act,1956 is based on the principles of Mitakshara and the Dayabaga School of thought. These school of thoughts were followed before the introduction of this act since thousands of years. But for all these years the existing system of justice inclined towards the male dominance, one such reflection is upon the status of a woman over her claim in her ancestral property. The Hindu Succession Act of 1956 did not bring much changes nor give any right to a woman to become a coparcener nor a ‘karta’. After the 174th Law Report’s recommendations the Hindu Succession (Amendment) Act of 2005, a woman was also allowed to be a coparcener to the ancestral property. Prior to this amendment in a Hindu Undivided Family, property could only devolve to a male coparcener and not to a female in the Hindu Undivided Family because the system that prevailed earlier was not inclusive of a woman to become a coparcener to the property. From time and again the Court of Law is trying to strengthen the position of a woman as a karta through various judgements. It took a very long struggle for this gender-neutral transition to take place and this stands as a witnessing change in the course of history of Indian Personal Laws.
This research article will focus on the time-line of the course of change in the position of a woman as a karta which shifted from a male dominant or a male only position to an open to woman position in a Hindu Joint Family. Itanalyses the reforms that were introduced pre and post-independence. The author further elucidates the current position of a woman as a karta and the lacunas that exist around it.
Page | 21 INTRODUCTION
The Hindu Succession Act of 1956 was ameliorated from the ancient Hindu Law that was followed and prevailed for many centuries. The essence of this Hindu law depended on two school of thoughts, i.e. the Dayabaga school of thought (interpreted by Jenutuvhana) followed in the regions of Assam and Bengal, and the Mitakshara school of thought (interpreted by Vignaneshwara) was followed in all the parts of India except in Assam and Bengal. It is essential to understand these school of thoughts in the light of joint families because of their differences in the concepts of inheriting the property, one by birth and the other by survivorship.
A Hindu Undivided Family (HUF) or a joint family system is prevalent in major parts of India and this kind of an extended family arrangement consists of a family head, who manages the family property, matters, etc. In such a set-up the ancestral property is divided among the family members (male members before 2005) equally by birth (Mitakshara) of the members of the family. Since many centuries in India such a family set-up has been male dominant and a woman’s involvement was zero or very minimal. Women were not given equal or minimal rights even with respect to succession of property due to the existing patriarchal and chauvinistic society in this country. But many reforms took place over this long period of time, from where we are now today.
Page | 22 1. KARTA
Who Is A Karta?
A ‘karta’ is the head of a Joint Hindu Family (JHU) or a Hindu Undivided Family (HUF), who manages the property of this joint family, internal matters, etc. In the case of Suraj Bansi Koer v Sheo Prasad “the term karta was defined as the manager of the joint family”36. The karta is the eldest member of the family (generally male) and maintains a fiduciary relationship with the joint family members. He/She is neither an agent nor a principle37, he/she is the guardian of the family property who has a fiduciary relationship with the other members of the family and his/her role is similar to that of a trustee but unlike a trustee a karta is not accountable to the family members38. “The role of a karta is regulated by seniority if he/she is not physically or mentally disabled and such a role can also be relinquished and is not inviolable.”39 It is not necessary that there should only be onemember looking after the family. “There can also be two persons managing the affairs of the family and this authority comes from the members of the joint family who confer such rights on
40 them.”
Who Can Be A Karta?
The basic qualification required for a person to become a karta is that he/she should be a coparcener to the property in the Hindu Joint Family. If a person is born or dies intestate in a Hindu Joint Family, such person leaves behind his/her property to his/her legal heir, the legal heir to such a property can be called the coparcener. A coparcener is a member of the joint family who acquires such a title by birth in the family, he/she is the joint heir of the family property and all the parceners or coparceners together own the joint family property. The term in the literal sense means ‘joint inheritance’. A minor can become the karta of the joint family with the consent of the coparceners of the family as long as a capable guardian represents him, and this happens in very rare circumstances where the minor is the only one left to become a manager. Otherwise ,“a minor can never become a karta and also a junior member of the family cannot become a karta in the presence of a capable elder member of
36Suraj Bansi Koer v. Sheo Prasad, (1880) 5 Cal 148. 37Kandasami Asari v. Somaskanta Ela Nidhi, (1910) 20 M.L.J 371. 38Perrazu v. Subbarayudu, (1921) 48 I.A. 280. 39 G.M.Diwekar, Hindu Law – A Critical Commentary 56 ( Hindu Law House 2nd Ed 2002.). 40Union of India v. Sri Ram Bohra, A.I.R. 1965 S.C. 1531.
Page | 23 the family unless there exists the consent of all the members of the joint family.”41 A woman can also become a karta after the Hindu Succession (Amendment) Act of 200542, now a woman can also become the coparcener of the family which allows her to become a karta of the family. A widow can also become a karta after the death of her husband, in cases where there is no other elder member to manage the family.
2. WOMAN AS A KARTA Position Of A Woman As A Karta Before 1956.
The main impediment for a woman to become a karta of the HUF is that she was not a coparcener to the property. Since time immemorial, women were seen as subservient and inferior to men and this even reflected in the property rights given to them. Women had very limited scope in succession or owning property.
Hindu Law of Inheritance Act, 1929.
The Hindu Inheritance was the Act of 1929 was the first piece of legislation that got woman into the picture of inheritance of property. According to the provisions of this Act a sister, son’s daughter, daughter’s daughter could inherit the property. But this brought a restriction to the rule of survivorship. This Act was one of the attempts made by the Britishers to reform the Hindu Law and introduce woman rights in it.
Hindu Women’s Right to Property, 1937.
This can be regarded as another successful and bold attempt made by the Britishers for the enhancement of women’s rights. The main purpose was to add widows to the line of succession apart from the above three as per the Act of 1929. The main idea behind its adoption was to shift the dependence of widows on others to themselves, though such power conferred upon her was limited. The widow could now take the share of the property that her husband was entitled to. But she wasn’t made a coparcener, so she couldn’t become the karta of the joint family that she was married into even after thee death of her husband. This Act was a revolution in itself as no rights were previously granted to a widow ever and this was the first step to many such reforms.
The Constitution of India43. 41 Narendra Kumar v. CIT, A.I.R..1976 S.C. 1953. 42The Hindu Succession (Amendment) Act, 2005, Acts of Parliament, No. 39
43INDIA CONST.
Page | 24 The framers of our Constitution kept in mind all the discriminations, suppressions, inequalities that women had faced since centuries and how this would continue if they hadn’t stepped in. The Constitution guarantees some Fundamental Rights to every citizen of India irrespective of their caste, gender, creed and race. Such rights include equality before law and equal rights, including special status to women to uplift them. Though these principles are enshrined in the constitution of India, there is still a very long way to go to achieve equal rights.
Hindu Succession Act, 1956.
After the adoption of our Constitution, The Hindu Succession Act of 1956 was the first unified law for Hindu succession that regulated intestate succession of both the Mitakshara and the Dayabhaga school of thought. This particular act brought in many changes one such major inclusion was by the virtue of Section 14 of the Act, a woman had absolute rights over the property. This act could still not provide equal claims to daughters as it provided to the sons of the Joint family.
2.2. Position Of A Woman After 1956.
The Hindu Succession Act of 1956 clearly did not prove to be enough to achieve equal rights. It created a distinction between married and unmarried daughters. The unmarried daughters were made coparceners like the sons but the same did not apply to the married daughters. The 174th Law Commission Report, 2000 (Property Rights of Woman: Proposed Reform under the Hindu Law) gave some very significant recommendations that were adopted in the subsequent amendment act of 2005. More than 7 decades of reforms in law and nothing changed the position of a woman to become a karta. The recommendations were two folds: firstly, to elevate the status of the daughters to coparceners and secondly to repeal s 23 of the 1956 Act. The recommendation and the subsequent Amendment were of a symbolic and an economic importance to a woman. The amendment of 2005 proved to be by far the best piece of legislation to advance the woman rights in light of inheritance.
But even before these recommended amendments were implemented some High Courts expressed their support to reforms through their judgements, though this was not taken in a good light by other High Courts did not welcome this with open hands. The Nagpur High Court in the case of Pandurang Vitoba v. Pandurang Ramchandra44was of the opinion that
44Pandurang Vitoba v. Pandurang Ramchandra, A.I.R 1947 Nag 178 (D).
Page | 25 the position of the karta could be extended to a widow but other High Courts were very hesitant to take this view and held back to the classical Hindu laws.
2.2.1 Hindu Succession (Amendment) Act, 2005.
The Amendment Act of 2005 came into force on 9th September, 2005 (which applies to coparcenary property under Mitakshara and not Dayabaga). The disqualification on a woman to become a coparcener was lifted after the 2005 Amendment to the Hindu Succession Act, 1956. In the single judge bench of Vaishali S Ganorkar v. Satish Kshavrao Ganorkar45 the court held that “Section 6 of the Amended Act, a daughter born on or after 9th September, 2005 could be the coparceners and daughters born before this did not have the same right.”46 But this position changed when the Apex Court in the case of Shankar Bhandari v. Omprakash Shankar Bhandari47 was of the opinion that “the words “on and from the commencement of this Act”, a daughter of a coparcener shall by birth become a coparcener in the same manner as a son”48 are indicative of the time of inclusion of the daughter in the coparcenary property and that her date of birth is irrelevant and that the amended Section 6 is
49 retroactive in operation.”
This Amendment gave equal rights to a daughter just like the son of the joint family. This change is marked as a significant shift from the existing classical concept under the Hindu Law. Section 6 of the Amended Act50 talks about the devolution of the coparcenary rights to a daughter. The court through many cases over the years has expressed the same in many judgements and further strengthened the position of the daughter to claim her right as a coparcener and as a karta in a joint family.
In the case of Danamma @ Suman Surpur v. Amar51the Supreme Court observed the following in light of the dynamic nature of law, “The law relating to the joint Hindu family governed by Mitakshara law has underline unprecedented changes. The said changes have been brought forward to address the growing need to merit equal treatment to the nearest female relatives, namely daughters of a coparcener. The section stipulates that the daughter would be a coparcener from her birth and would have the same rights and liabilities as that of 45Vaishali S Ganorkar v. Satish Kshavrao Ganorkar, A.I.R. 2012 Bam 101. 46Vaishali S Ganorkar v. Satish Kshavrao Ganorkar, A.I.R. 2012 Bam 101. 47Shankar Bhandari v. Omprakash Shankar Bhandari, A.I.R. 2014 Bom 151. 48 The Hindu Succession (Amendment) Act, 2005, Act No. 39, Acts of Parliament, 2005 (India). 49Shankar Bhandari v. Omprakash Shankar Bhandari, A.I.R. 2014 Bom 151. 50The Hindu Succession (Amendment) Act, 2005, Act No. 39, Acts of Parliament, 2005 (India). 51Danamma @ Suman Surpur v. Amar, A.I.R. 2018 S.C. 721.
Page | 26 a son. These changes have been sought to be made on the touchstone of equality, thus seeking to remove the perceived disability and prejudice to which a daughter had been subjected. The fundamental changes brought forward about in the Hindu Succession Act, 1956, by amending it in 2005, are perhaps a realization of the immortal words of Roscoe Pound as appearing in his celebrated treaties, The Ideal Element in Law, that “the law must be stable yet it cannot stand still. Hence all thinking about law ha struggled to reconcile the conflicting demands of
52 the need of stability and the need of change”.”
In the case of Phulawati v. Prakash53the court held that, “the daughters are now coparceners along with their male counterpart and is entitled to an equal share in the coparcenary
54 property.”
Similarly, in the case of K Krishnamoorthy v. J Surya Bai55, the court was of the opinion that, “Section 6 of the Amended Act56 which provides for devolution of coparcenary property, in a suit for partition, where the parties themselves admit that the property was ancestral, then the daughters are entitled to an equal right as that of the son as coparceners in joint family
57 property.”
This Amendment gave the daughter the right to become a coparcener, which forms the basic qualification of a member of the Hindu Undivided Family to become a karta. A daughter can now become a karta and has equal right to become one as any of the other male coparceners in the family, provided that she is the senior most member of the family.
The marriage of a daughter who is a coparcener, no more affected her right to remain a coparcener or to inherit the coparcenary property, she could continue to be a coparcener and her children also will be coparceners. So, she would now be a part of both the joint families, the one she was born in and other she was married into (as spouse). But she cannot be become a coparcener in her husband’s joint family, though she becomes a part of the joint family. The problem did not end here, the position of a widow as a karta is still not affirmed by law. A widow cannot become the karta of a Joint Family though she can be a member of such a joint family. But in circumstances where there is no senior member in the family, she
52Danamma @ Suman Surpur v. Amar, A.I.R. 2018 S.C. 721. 53Phulawati v. Prakash, A.I.R. 2011 Kant 78. 54Phulawati v. Prakash, A.I.R. 2011 Kant 78. 55K Krishnamoorthy v. J Surya Bai, A.I.R. 2018 (NOC) 156 (Mad). 56The Hindu Succession (Amendment) Act, 2005, Act No. 39, Acts of Parliament, 2005 (India). 57K Krishnamoorthy v. J Surya Bai, A.I.R. 2018 (NOC) 156 (Mad).
Page | 27 can manage (and not become the karta) the Hindu Joint Family till there is an adult member in the family and then hand over such responsibilities to that member. A mother and a wife cannot become the coparceners of the Joint Family.
In the case of R Mahalakshmi v. A Kanchana58, the Apex Court clarified with regards to the effect of a daughter’s position as a karta “after her marriage and held that the marital status of
59 a woman does not take away her right to become a karta of the Joint family.”
Now the position of a daughter to become a karta was confirmed after a long struggle, a struggle which stretched over years.
3. LACUNAS THAT STILL PREVAIL.
The grey area that still exists regarding a woman’s position is that, the law gave equal rights to the male and female child to inherit the property but it does not expressly elucidate her right to administer the family affairs although practically speaking after following the Amendment of 2005 and subsequently following the judgement given by the Delhi High court which essentially says that if a woman can equally inherit the property then she can even run the family affairs on the equal footing as a male member. Even if the law has reformed and recognised a woman’s right it will take years and generations together for the same to be accepted by our patriarchal society where a woman is considered inferior and subservient to a man. And also considering the fact that women are the supressed class, even if they are given a platform to be heard and a right to exercise, they would not let their voices be heard because of the traditional, conservative ideologies that are carried. Moreover, the position of a widow is also not strengthened.
The daughter is not given an immunity to claim for her share of coparcenary property before the 20th of December, 2004. She doesn’t have the capacity to question such a partition.
Before the Act was introduced, an undivided co-parcener was not allowed to make a will for his undivided shares, but after 1956 this disability was removed. The extent of the testamentary succession cannot be controlled, sometimes the whole purpose of bringing in so many reforms and amendments is defeated as a coparcener who does not want his daughter to inherit an equal share would now conveniently opt for a testamentary succession. The 58R Mahalakshmi v.A Kanchana, 2016(11) A.D.J 279. 59R Mahalakshmi v.A Kanchana, 2016(11) A.D.J 279.
Page | 28 previously existing disability must be brought back. The Amendment also does not give a complete understanding of the status of a widow in her matrimonial families.
In many patriarchal, conservative Indian families when a daughter is married, it is seen as the daughter leaving her parents house and joining the husband’s family. Sometimes a situation may arise when such a daughter becomes the karta, in such a situation she might reside elsewhere due to her matrimony. This would rise practical difficulties for the karta to manage the family affairs very difficult.
Hence, adopting the Kerala Model of removing the whole Joint Family concept for inheritance would have proven to be more practical.
CONCLUSION
The personal laws in India have always had a proclivity towards the male. Many reforms have through the years helped in changing the scenario that previously existed. The 2005 Amendment to the Hindu Succession Act of 1956, was one such attempt. This amendment introduced the following: a) a daughter was made a coparcener in the Joint Family Property b) She now enjoyed the same rights as a coparcener as the son and c) She was to bear the same liabilities arising out of such coparcenary property as the sons. Though this Amendment gave the daughters an equal footing as the son and strengthened their rights, there are still many lacunas that exist even today and it is still a struggle for the daughters of Joint Family to realise their rights. Despite bringing in so many statutory reforms in a woman’s position as a karta, how many families really accept a woman as a karta? hardly any! It still remains a farfetched idea of a woman being treated equal to a man and she being given a role as a family head (karta).
Prattay & Vishnu Sudarshan P
Page | 29 ABSTRACT
A plethora of factors influence the transgression of a city into a smart city. The author’s, primarily answer the question of what is the role of sustainable development goals in ameliorating a city into a smart city. The paper aims to find several orthodox and unorthodox answers to questions like what does one mean by sustainability in a smart city. For this, it is vital to understand theimplementation of this regime intheconversion of a city into a smart city when the sustainable development goals are incorporated by the law enforcing agencies in the city. This paper ventures into the reports of various organizations such as the UNDP’s report on the millennium development goals. This paper essentially examines the relationship between the sustainable development goals, real estate regulation zoning and information communication technology which are prevalent in smart cities. Awareness plays an important role in the implementation of these goals. Due to the lack of awareness and initiative made by the residents of the state of Karnataka, the transition to smart cities becomes difficult. The paper will also assess the role of private sector enterprises in the progression of cities into sustainably developed smart cities. This paper will measure the extent of implementation of the aforementioned goals into the cities of Karnatakaand effectively understand the various provisions of law that act as a cause in the implementation of a sustainably developed smart city. Along with examining the current provisions of law, we endeavour to provide for possible amendments and additions to help reach the ultimatum of sustainably developed smart cities in the state of Karnataka. An indispensable aspect of this paper will be the assessment of the economics of government spending, the effectiveness of thepolicies implemented and its repercussions.
INTRODUCTION
Page | 30 Over the past few decades, India has strived to establish economic policies and laws that favor the development of the nation in terms of employment, Economic growth and education. These economic policies and laws follow the basic guidelines of the 17 sustainable goals and through the implementation of these goals, the emergence and growth of smart cities seem to be on the rise. The objective of this paper is to examine the relationship between sustainable development goals and smart cities. Before analyzing and establishing the relation between the two terms, it is essential to define them. Sustainable development is the development that meets the needs of the present, without compromising the ability of future generations to meet their own needs60. A bare reading of the aforementioned definition lays out the two important aspects of sustainable development. Firstly, Sustainable development refers to a situation where the needs of the present are being met. These needs differ over time as the economic and social conditions of the state change. Secondly, sustainable development seeks to establish a situation where the future generation gets to enjoy the resources of the state just as much as the previous generation did. This can be done through an efficient means of allocating resources. Through this definition, we have understood the ultimatum of sustainable development and the means to implement sustainable development in an economy. Now, it is essential to define a “smart city”. However, there is no concrete definition of a smart city but it is possible to explain the term keeping in mind its features. Some of the important features of a smart city are:
i. To promote the mixed land use ii. Preserving and developing open spaces iii. Ameliorating the transport system iv. Creating walk-able localities v. Giving an identity to the city (Based on cuisine, economy, education,and infrastructure) vi. Applying Smart Solutions to infrastructure and services in area-based development in order to make them better. vii. Efficient systems of sanitation and garbage disposal
60 “What Is Sustainable Development.” What Is Sustainable Development · Sustainable Development Commission, www.sd-commission.org.uk/pages/what-is-sustainable-development.html.
Page | 31 viii. Good quality of living of the society ix. Intelligent traffic management x. Adequate water supply xi. Expanding housing options xii. Clean and healthy food encouraged xiii. Making governance citizen friendly
Hence, a smart city is a designation given to a city that incorporates information and communication technologies (ICT) to enhance the quality and performance of urban services such as energy, transportation,and utilities in order to reduce resource consumption, wastage and overall costs. The overarching aim of a smart city is to enhance the quality of living for its citizens through smart technology.61 The definition of a smart city,however, differs from region to region. As long as the city caters to the needs of the people of the city with a minimal amount of friction, it can be considered as a smart city. For this paper,however, we will be focusing on the state of Karnataka and its people. Since we have defined the two terms, it is critical to understand the sustainable development goals that pertain to smart cities.
STATEMENT OF PROBLEM
This paper’s primary objective is to study the various provisions in India in reference to Smart Cities and Sustainable Development Goals. The researcher has further focussed upon the various aspects of laws proposed by the State and how are these
61“What Is a Smart City? - Definition from Techopedia” (Techopedia.com)
Page | 32 laws can be brought in practice. The author has also done the extensive research on the role of state in the implementation of such environment friendly laws in the country. In the end, the author has provided his critical analysis, where the author has provided areas of both for and against.
RESEARCH QUESTIONS
1. What is the relationship between SDGs and Smart Cities? 2. What is the status quo ante regarding the laws facilitating SDGs in Smart Cities? 3. What are the laws which may help in amelioration of a smart city into a sustainably developed one? 4. What is the role of Information Communication Technology (ICT) in making a smart city into a sustainably developed one 5. What is the further role of the State in facilitating Sustainably developed?
RESEARCH METHODOLOGY
The research undertaken is purely a research. However, in order to substantiate certain propositions, the researcher has undertaken the method of historical research as well. The researcher has also paid regular visits to various information centres (University library) to gather information about the said topic. Access to various online sources and other legal research database provided by the University websites has been very helpful to the researcher.
MODE OF CITATION
The citation design that has been uniformly followed in this paper is the 19th edition blue book format citation.
Page | 33
CHAPTER II
RELATIONSHIP BETWEEN SUSTAINABLE DEVELOPMENTAL GOALS AND SMART CITIES
In this section, we will take each individual goal and establish a relationship between it and smart cities. This will be done by comparing the goals to the features of a smart city. There are 17 universally accepted sustainable development goals which were mandated by the United Nations General Assembly as a part of resolution 70/162. The ultimatums of these goals are set up keeping in mind the current state of the various economies in the world.However, it has to be kept in mind that not all these goals contribute to the transformation in the smart city. For the purpose of this paper, the Sustainable development goals that contribute to smart cities are: - i. Ensure availability and sustainable management of water and sanitation for all: This goal is perhaps one of the most important steps to achieve the transformation and the growth of a smart city. One of the features of a smart city is the availability of adequate clean water. Essentially, every person in the city must have the right to be able to access clean water in adequate amounts. The cities of Karnataka have been subjected to a deprivation of water in the past. Primarily, The Cauvery River acts as the source of water. However, with the advent of bore wells, the role the river has to play as a source of water is gradually decreasing and issues relating to the availability of water have reduced. The Karnataka (Prevention and Control of Pollution) Act, 1974 plays a vital role in ensuring the cleanliness of the water. This Act will be dealt upon in detail later in the paper. Efficient methods of sanitation are another critical feature of a smart city. This primarily includes efficient methods of garbage disposal and sewerage in the city. The Bangalore Water Supply and Sewerage Act, 1964 is one of the many Acts
62 “About the Sustainable Development Goals - United Nations Sustainable Development” (United Nations)
Page | 34 made by the state of Karnataka to ensure an efficient system of sanitation in the
63 city. ii. Ensure access to affordable, reliable, sustainable and modern energy for all: This goal relates to a critical aspect of a smart city. An affordable, reliable and sustainable source of energy is critical to ensure the smooth functioning of the infrastructure in a city. The main premise of this goal is to ensure an adequate amount of energy to all the households in the city. It is critical to understand that that the infrastructure of the city is dependent upon the source of energy that it uses. This directly leads to the amelioration of the city’s infrastructure thereby leading it one step closer to a smart city. The Karnataka Electricity (Taxation on Consumption) Act, 1959. Deals with the various intricacies of energy consumption and usage in the state of Karnataka. Suggestions and possible amendments to this Act will be dealt with through the course of this paper. iii. Promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all: The ultimatum of this goal is to achieve a regime where every citizen in a region is an actual contributing member to the economic growth of the region. Providing for decent employment leads to a plethora of benefits which act as factors to a smart city. It ensures a system where the people of the region act as contributors to the economy of the region. The people become the source of revenue for the region it is based in thereby granting the government more funds to work around with. The government can use the revenue to improve the cities amenities and infrastructure. Achieving this goal also leads to the improvement of the standard of living of the residents of the city. All of the above being the features of a smart city. The state of Karnataka boasts a very high employment rate placing second in the rankings64. At this rate, the state of Karnataka’s infrastructure can grow to a large extent with the revenue that it acquires.
63 “Environmental Sanitation” Sanitation 459 64 Tripathi B, “Karnataka Has India's 2nd Lowest Unemployment Rate, Lags on Women Empowerment” (IndiaSpendSeptember 11, 2018)
Page | 35 iv. Build a resilient infrastructure, promote inclusive and sustainable industrialization and foster innovation: This goal is one of the most critical ultimatums of a smart city. The infrastructure of a city contributes greatly to its efficiency and functioning. There are several legislations and schemes made by the government of Karnataka which help in achieving this goal, one of the Statutes include the National Highways Authority of India Act of 1988. This Act essentially regulates the authorities that ensure the road safety. Achieving a systematic and efficient infrastructure in a city contributes greatly to its growth to a smart city. v. Make cities and human settlements inclusive, safe, resilient and sustainable: One of the most critical sustainable development goals is to ensure that the cities and human settlements develop to an extent where they are safe for the citizens and are able to recover from any situation that stands in its way of development. Essentially this goal strives to ensure access for every person to adequate, safe and affordable housing and basic services, and upgrade slums and increase the number of cities and human settlements adopting and implementing integrated policies and plans towards inclusion, resource efficiency, mitigation and adaptation to climate change, resilience to disasters, develop and implement in line with the forthcoming Hyogo Framework holistic disaster risk management at all levels65. vi. Ensure sustainable consumption and production patterns: This goal boils down to the effective use of natural and human resources. As stated earlier, the regime of sustainable development is to ensure that the next generation is able to enjoy the resources of a state just as much as the current generation does. One way to achieve this goal is by Encouraging companies, especially large and transnational companies, to adopt sustainable practices and to integrate sustainability information into their reporting cycle. It is essential to achieve this
66 goal to support and transform into smart cities. 65Anshul Bhamra, “Achieving the Sustainable Development Goals in India a Study of Financial Requirements and Gaps” [2015] the Ministry of Environment, Forest and Climate Change 66 Silva BN, Khan M and Han K, “Towards Sustainable Smart Cities: A Review of Trends, Architectures, Components, and Open Challenges in Smart Cities” (2018) 38 Sustainable Cities and
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CHAPTER: III
AN ANALYSIS AND REVIEW OF EXISTING AND POSSIBLE GOVERNMENT SCHEMES AND LEGISLATIONS
A plethora of schemes and legislation have been made by the government of Karnataka to implement sustainable goals and transform its cities into smart cities. These are the legislations and schemes: 1. SUSTAINABLE DEVELOPMENT GOALS TO INFORMATION COMMUNICATION AND TECHNOLOGIES.
Information and communications technology are essentially the infrastructure and components that help in modern computing. Though there is no set definition about ICT, it usually means that it is generally accepted to mean all the devices, modern age networking setups, applications and systems that combined allow people and institutions to help them interact in the business world. Information and Communication Technology (ICT) incorporates two basic spheres around which it primarily revolves, those being internet enabled spheres as well as mobile one67 powered by the wireless network. It also includes archaic know hows, such as landline phones, radio, and goggle-box broadcast -- all of which are still extensively utilized currently together with some bleeding-edge ICT smithereens such as artificial intelligence68 (AI) and robotics69. ICT is commonly utilized to characterize a comprehensive, broader list of all mechanisms related to computer and alphanumeric technologies than Information Technology. The list of ICT components is in exhaustive, and it endures to grow. Right now, in the present age, there is more and more emphasis onto the mobility of technology, that is why there is more and more
Society 697 67Mobile computing is the set of IT technologies, products, services, and operational strategies and procedures that enable end users to gain access to computation, information, and related resources and capabilities. 68AI (artificial intelligence) is the simulation of human intelligence processes by machines, especially computer systems. 69Robotics is a branch of engineering that involves the conception, design, manufacture, and operation of robots.
Page | 37 emphasis on smartphones technology. The shift from having rooms full of supercomputers to get your work done to having a minicomputer in your pockets is due to the prevalence of ICT. ICT is leveraged in towards the economic and societal transactions, where it lays more and more emphasis on how people work and communicate. ICT, in general, has developed the work environment of various organizations in a significant manner. ICTs impact in the economic spheres of life is so monumental that it has contributed towards something as what people call it the fourth industrial revolution. In the present age, it is due such advancement in technologies that it has been possible to upgrade the human experience. An evident example for this would be how the mini computers in our pockets help us in perform even basic functions at ease, by using complicated technology. In the present day, software companies like Google and Microsoft have invented a lot in the research and development funding to explore more and more about this phenomenon. It is very evident that due to the usage of these technologies, how effortless an individual life is becoming in the modern day.
1.2. ICT AND SUSTAINABLE DEVELOPMENT
Information Communication Technology is an imperative catalyst and augmentation of change. The primary focus of ICT being on communication, in turn, helps in data analysis and decision making, which eventually helps in accelerating the growth of economic change leading to more market volatility. Developing countries like India would be requiring the knowledge of the ever- changing technologies to be up to date. By getting adequate knowledge about the same, it would be easier for the States to figure out the right kind of ICT infrastructure, skilled workers and institutional frame work. As one of the features of a smart city is to apply smart solutions to the infrastructural arrangement of the city and services in area-based development in order to make them better, ICT essentially ameliorates such things at ease. Also, not to forget that ICT provides knowledge about the ever-changing world of technology.
Page | 38 One such example would be the introduction of electric cars in the State of Karnataka, through The Motor Vehicle Act70. In the present case, if the people of the State of Karnataka are unaware of the concept of electric cars (or any other technology for that matter), because of this lack of knowledge amongst citizens, the general public would have to use the available mode of fuels as provided for their vehicles. It is due to ICT, that one can use the alternative fuel for their cars (i.e., in this case, electricity) instead of using the conventional methods. Hence in such a way, ICT is ameliorating a city into a smart city which also happens to be a sustainably developed state. It also helps in selection and sustenance of a welfare-enhancing growth trajectory for economies of state in a more turbulent and volatile global economy. ICT eventually facilitates the acquirement of better information to make wise decisions as and when the situation demands. At the WTDC-2017 71 in celebration of the 25th Anniversary of the ITU-D in October 2017, the ITU published the report72, prepared by an international team of scholars documenting current thinking about how ICTs can contribute to the realization of the Strategic Development Goals (SDGs).This, in turn, collaborates the 17th sustainable development goal that is to create partnerships to achieve the goal. 2. LAWS REGARDING SANITATION AND WATER
The aspects of clean and adequate water as well as an efficient means of ensuring the disposal of garbage are vital features in a smart city. These factors are also included in the sustainable development goals. In this section, we will focus on the two aspects and their relation to smart cities. To start off with, we will discuss the intricacies of sanitation. In the case of Virendra Gaur and Ors vs the State of Haryana,73 It was held that the Right to life with human dignity cannot be enjoyed without sanitation. The hygienic environment is an integral
70The Motor Vehicle Act, 1988 71The World Telecommunication Development Conference (WTDC-17) convened in Buenos Aires, Argentina, from 9 to 20 October 2017 following the kind invitation of the Government of Argentina and the approval by the Council with the concurrence of a majority of the Member States of ITU. It was preceded by six regional preparatory meetings, two in the last quarter of 2016 and four in the first quarter of 2017, starting in the Commonwealth of Independent States (CIS), then Africa, Arab States, Americas, Asia-Pacific, and Europe. 72 ICT-centric economic growth, innovation and job-creation 73Virendra Gaur andOrs vs State of Haryana And Ors on 24 November, 1994
Page | 39 facet of the right to a healthy life and it would be impossible to live with human dignity without a humane and healthy environment. The situation of improper and inadequate sanitation, therefore, amounts to a violation of the right to life guaranteed under the Constitution. It must be understood that the concept of sanitation does not restrict itself to the washrooms and roads; it ensures the cleanliness of public places with an efficient garbage disposal system accompanied with stricter laws on littering. In the case of Municipal Council, Ratlam v. Varichand74, It was said that it is a responsibility of the Government to provide sanitation facilities that is in good condition and sufficient to meet the needs of the people. Responsible local bodies cannot run away from this responsibility by saying lack of fund. Keeping in mind the principles of Article 14 of the Indian Constitution, there have been several legislations and policies made by the government of Karnataka to ensure an efficient system of sanitation. The Karnataka Municipal Corporations Act of 1976 , The Karnataka Panchayati Raj Act of 1993, The Karnataka Urban Water Supply and Drainage Board Act of 1973 and The Bangalore Water Supply and Sewerage Act of 1964 included provisions which involved the sanitation measures of the state of Karnataka. These Acts have defined the various aspects of sanitation and cleanliness. The issue with these Acts however, is the fact that the implementation due to its complicated structure. The Bangalore Water Supply and Sewerage Act for example under section 3(6)75says that the board shall not be questioned for any act that they have done. This proviso essentially grants the board the freedom to do anything that they please for the benefit or the worse of the city. The amendment of these provisions can help to drastically change the governance of these boards. Adequate and clean water is also a necessity in a smart city. Safe and drinkable water is essential in the sustainable development goals. In the case of Narmada BachaoAndolan v. Union of India and Others76it was held that water is the basic need for the survival of the human beings and is part of the right to life and human rights as
74Municipal Council, Ratlam vs Shri Vardhichand&Ors on 29 July, 1980
756)No act done by the Board shall be called in question on the ground only of the existence of any vacancy in, or defect in the constitution of, the Board.
76Narmada BachaoAndolan vs Union of India And Others on 18 October, 2000
Page | 40 enshrined in Article 21 of the Constitution of India. Hence it is the responsibility of the government to provide for clean and drinkable water to the citizens. There are two main legislations made by the government of Karnataka to regulate the sources and distributions of water, The Karnataka Ground Water (Regulation for Protection of Sources of Drinking Water) Act, 1999 and The Karnataka Groundwater (Regulation and Control of Development and Management) Act, 2011. Among the others, these two laws deal specifically with the supply of clean and drinkable water. It is to be kept in mind that the state of Karnataka has mostly always been able to ensure an adequate amount of clean water for its residents as compared to most states. Water and sanitation act as an imperative aspect of implementing the regime of a smart city, However, amending the policies and legislation made by the government on these two aspects is the need of the hour. 3. THE KARNATAKA ELECTRIC VEHICLE AND ENERGY STORAGE POLICY IN 2017
In a recent policy 77of the government, the government decided to make the state the number one destination for e-vehicle manufacturing, by funding and rewarding such production. The state is already generating more than Rs. 3,800 vehicles annually. This move connects the dual objectives of achieving a sustainable developed smart city in a very way which is as of now guarded against lapses. The move boosts the transport sector in general but also helps in providing the state of Karnataka a sustainable transportation policy. The policy includes e vehicle assembly zone with developmental policies which are sustainable in nature. A projected Rs 31,000 crore investment is what is to be expected to be decanted into e-vehicle fabrication, in turn facilitating to create at least 55,000 jobs and providing the city of Bangalore the title of country’s e-vehicle capital. The state of Karnataka is also planning a skill enhancement center, a joint inventiveness between the government and private e-vehicle players. 4. THOROUGHFARE CONNECTEDNESS
77the Karnataka Electric Vehicle and Energy Storage Policy in 2017
Page | 41 The Karnataka State Highways Improvement Project (KSHIP) 78is now in the third phase of upgrading the state’s principal road network. The necessity for first-class conveyance transport connectivity is vital in maintaining Karnataka’s repute technological hub and imperative for continuing economic growth. KSHIP is congruently essential for the progression of the society in general, as a better-quality thoroughfare network will link more remote extents with urban and subprime urban, increasing access to public services such as healthcare and education. With this in mind, KSHIP-III strives to build also 418.5 km of roads at a cost of Rs 5,334.2 crore in 2017-18. It also Upgrades include broader lanes, paved shoulders and sharp safety with illuminations and footpaths. The project will eventually conduct a road safety review to identify serious accidental spots along the principal road system and eventually recommend any changes. Since inception, KSHIP has been funded by the government, PPPs and multilateral agencies such as the Asian Development Bank. It’s due for completion by the end of 2023.
5. PROVISIONS FOR E-MANDI
Karnataka is one of the leading states to provide e- agricultural goals in the country. This, in turn, has transformed the agrarian supply chain. The State has partnered with national Commodity and Derivatives Exchange Limited79 to establish an electronic podium in the year of 2014, and determine the sale price of goods and commodities which are vital. An estimated 298 lakh tonnes of commodities having a total worth of Rs 56,696 crore have been traded through this Unified Market Platform80 (UMP).
78The Karnataka State Highways Improvement Project (KSHIP) is an initiative of the Public Works Department of the Government of Karnataka for improvement of road network of the state with World Bank assistance. 79National Commodity & Derivatives Exchange Limited is an online commodity exchange based in India. It has an independent board of directors and provides a commodity exchange platform for market participants to trade in commodity derivatives. 80The UMP is an initiative of Rashtriya e-Market Services (ReMS) - a joint venture between NCDEX e-Markets Limited and the government of Karnataka.
Page | 42 The virtual mandismechanize the weights, providing for adequate accounting required to auction a crop, and assists farmers to decide the finest price for his end products. This has led to the bidding process and augmented competitiveness, and therefore livelihoods, for farmers.
CONCLUSION
Sustainable development, though defined in many ways, goes on ultimately to mean a common future. The final conclusion which one derives while understanding Sustainable Development is a level of development which meets the needs of the present as well as future. We have received the 17 Sustainable Development Goals (SDGs) to take effective steps of achieving sustainability in the world by processing such measure.
Steps have been initiated by the government to ameliorate Smart Cities into a sustainably developed one. To make this possible, the Parliament have passed various legislations in relation to this. The State has taken effective steps to curb the emission of pollutants which are harmful to the environment, ensured disposal of waste is managed in a way which is in consonance with the SDGs and synergised Information Communication Technology (ICT) into the State laws to promote usage of alternate energy in the country throughout.
The authors, at the end of this paper have provided their analysis of the effectiveness of such laws and furthermore suggested the implementation of various other techniques which can be ameliorated into the city laws to help and protect the environment, where the primacy has to be given to the environment without compromising the quality of life of people living in the city.
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M.Santha Kumari ABSTRACT
“LEGAL PROTECTION OF THE TRIBES”
VALIDITY OF THE LAWS OF THE VULNERABLE, RIGHTS VS. REALITY:
The arms of law are said to be wider, rendering protection from even before birth to even after death i.e. from cradle to grave. This is not true in case of the tribal people who are still vulnerable groups, inhabiting in the remote corners of the world remaining true to the nature and their culture. Aboriginals, Indigenous, Tribes with various nomenclature to refer them they are the true owner of the land they live in as they have multi generational relationship with the land that too with retained essence, an insight into their life is the doorway to human history and relationship with nature. Tribes are not only the people with distinct culture and identity alone they are the protectors of their distinct identity beyond ages and challenges, which other human communities failed to achieve.
“Small Is Beautiful” is their life mantra, with small needs they lead a simple yet beautiful life but this beauty has a harsh history, they had to struggle for fulfilling even these demands though less than other human communities and the saga continues till date indeed with even more injustice. To prevent cultural subjugation, economic exploitation and social marginalization legal protections were urged. The 20th century has given them various legal identity and rights, internationally, nationally and regionally laws along with various initiatives are made on them but how far the laws are for them is the question. Indian constitution enshrines fundamental rights with further added privileges. General laws and even specific law render protection to them directly or indirectly. Positive efforts are made but it is the very modern legal system which had made it further hard on them. They are asked to compromise for development first even though the development helps their life in no way. They are victimized for a sin that they never committed. Economic, socio-political prejudices are done to them, when they question it to protect their identity, system asks them to compromise or give up and portrays them as anti- national or anti-developmental.
Page | 44 Constraints in their legal rights makes them encounter new strategies often at the cost of tradition and identity against their will. These vulnerable peoples are thus victimized further.
Their minimal demand to retain their identity, is sacred and valid, failing to give it is a core injustice. Legal systems must be committed to make human rights a reality for the tribes. Balance of right and reality is the urge of the hour to sub serve the interest of these nature friendly communities. Adequacy is nothing without efficiency.
Key words: - Aboriginals, Identity, Compromise, Vulnerable, Efficiency
“LEGAL PROTECTION OF THE TRIBES” VALIDITY OF THE LAWS OF THE VULNERABLE, RIGHTS v. REALITY Leaving behind their homes, Their soil, and bales of straw Fleeing the roof over their heads, they often ask: O, city! Are you ever wrenched by the very roots In the name of so-called progress?
The month of January 2017 the Modern India rose to make history where the entire students of and people of Tamil Nadu and elsewhere protested for the uplifting their custom called ‘Jallikattu’ stating it as their identity, even if there was a clear signal of no to the practice and upheld the law prohibiting it. (Preventition of Cruelty To Animals Act, 1960). What started off as a symbolic protest by a group of youngsters against the ban on ‘Jallikattu’, touted as a sport to exhibit Tamil valour, soon snowballed into a week-long siege with crowds milling all over the scenic beach. The world turned to India to witness the marvelous importance this land and its people attached to their custom and tradition and the extend they went to bring it back even
Page | 45 though the apex authority of the judicial system said a clear no(Animal Welfare Board of India v. Nagappa and others, 2014)on ground of violating art 51 A (g) and (h) and Sec 3, 11 of the PCA act, 1960
Finally the people’s will and endeavor to protect their identity won, forcing the State to make necessary amendments(Prevention of Cruelity To Animals (Tamil Nadu Amendments) Act, 2017)to render the practice of ‘Jallikattu ‘back again.
But this also leads us to a question, whether people will stand equally for all traditions and custom, identity? Whether the same response is rendered by the legal system to all communities? Whether every time a huge scale protest is needed to if important or will all the customs if scared are respected?
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Is all this Pointing to the uncertainty and hypocrisy of law? One such area of uncertainity and ignorance is the plight of tribal people, whose identity is turning as a curse to them.
According to UNESCO, 197 languages in India are reported to be endangered of which 81 are vulnerable followed by definitely endangered (63), severely endangered (6), critically endangered (42) and already extinct (5). Andaman and Nicobar tops the list with 11 critically endangered languages, mainly tribal dialects. (THE HANS INDIA, 2017) With most of these languages spoken by tribes and lacking a script, it has been particularly difficult to preserve them.
INTRODUCTION:-
Tribe is a social gathering of a typical type of people having vast differentiation with the rural and urban people. They are a social group aloof from the rest of people. Tribes are folk living in a specified area since a long time with unique identity such as language etc marked by a static way of life.
Indigenous peoples are "composed of the existing descendants of the peoples who inhabited the present territory of a country wholly or partially at the time when
Page | 46 persons from a different culture or ethnic origin arrived there from other parts of the world." (Wolfrum).Known by different names like aboriginals, indigenous, Adivasis, primitive, animists, Girijans (Mah)their meaning varies from person to person but ends with a point that they have simple needs and benefits making them differently abled than rest of humanity. Evolution of the definition and meaning of the tribes are an expression of their life itself which has changed towards deterioration. The need to define arose due to their sufferings. Nowadays a sense of backwardness is always attached to tribes whenever they are referred.
We are the Adivasis, Where there lived
Democracy and solidarity, with no superiority. (chettiar, 1942) -3- Tribes were hardly accessible marked with separate socio-cultural conditions etc. Tribal people were considered the protector of forest in the past. Only when men from the plains began mixing with them, the need of the people in plains stressed the need to make regulations, thus making them prone to economic slowly and slowly cultural, social and when needs of development started to displace them from their habitat. Many socio- economic, cultural problem etc cropped, demanding the need for a protection of law. The availability of resources with tribes made the need to for laws regulating them to facilitate them to have access to resources, this slowly has lead to snatching of economic rights, which they could rarely oppose, making them vulnerable.
LEGAL PATHWAY SINCE HISTORY- INDEPENDENT TO VULNERABILTY:–
As the medieval period has been age of exploitation of tribes they entered the arena of vulnerability from all perspective. They were even marked as criminals with strict laws against them portraying them as criminals (Criminal Tribes Act, 1924). These are least legally empowered, of the vulnerable groups. Indigenous people round the world have kept their fight for survival live struggling to maintain their century old rights.
NOT JUST THEM A MATTER OF US- A HUMAN RIGHT ISSUE: -
Page | 47 Indigenous peoples are increasingly turning to international law as a means for protecting their rights. But their plight is different from other human rights as there is lack of adequate people to voice out for them and they themselves are not well equipped, even some are beyond the stage to even understand whether they have some rights like the Sentinels of Andaman and Nicobar Islands. So they have very less document to support them. but focus was laid on them though lately by international law—including international bodies such as the United Nations and the Organization of American States, etc.—play in protecting Indigenous peoples’ rights to property, self-determination, cultural integrity, life, etc. UDHR, ICCPR, ICSERand several other treaties and agreements in general emphasize their rights.
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The only international law that secures tribal people’s rights is the International Labour Organization Convention 169. ILO 169 recognizes and protects tribal peoples’ land ownership rights, and sets a series of minimum UN standards regarding consultation and consent.Across the world, tribal peoples’ lands are being stolen and their communities devastated. ILO Convention 169 is the only international law designed to protect tribal peoples’ rights.
But only 22 countries have ratified it even India is yet to do it(ILO). Tribes are entitled right to enjoy the full measure of human rights and fundamental freedoms without hindrances or discrimination, enjoyment of general rights of citizenship is given(Art .3, Indigeous and tribal peoples Convention,1989) Right to land(Art 4 , Indigeous and tribal peoples Convention,1989), to protect culture etc and protection from discrimination of workers. The convention obliges govt. to identify the land and protect the tribal rights, cultural and social practices.
INDIA - THE SECOND LARGEST HOME FOR TRIBES:–
In the context of Asia, a region which is on its phase of developmental objective, where need of rights are more provided and ignored at the same time, India has been generous enough to the vulnerable, far satisfactory then other countries. Scheduled tribes are the tribes or tribal communities or parts of or groups within such tribes or
Page | 48 tribal communities which the President may specify by public notification under Art 342(1) of the Constitution of India. India too has lot there are general laws the and various protective law(The Scheduled Caste and Scheduled Tribes ( Prevention of Atrocities) Act, 1989).Adivasi make up 8.6% of India's population, or 104 million people.(Census of India, 2011)
RIGHTS vs. REALITY-VICTIMIZATION OF THE VULNERABLE: -
The advent of Non- Tribal laws to the tribes are of two-fold process:
1- REGULATORY- to serve the need of non-tribes- these bunch of rights are said to be based on the policy to protect the forest and often are prohibitory and regulatory laws that protect the natural resources. These laws are upheld on the ground that tribes can’t take the forest for granted. These laws mostly affect the economic life. Forest act,environmental policy is as such.
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2- PROTECTIVE LAWS-To protect the tribes- there are laws which give special protection to the tribal people giving due respect to their culture, identity. this is on account of their inability to understand the modern form of govt. these are affirmative laws bothered less about the economic resources.
The legal implications of tribes expanded in both kind of law. The main cause demanding need to emphasize to protect this vulnerable is nothing but the regulatory laws which victimized these vulnerable by depriving them of those little rights as well which they preserved since a long time. Protective laws are directly or indirectly due to regulatory laws. The virtual life givers were made vulnerable by exploitation of their habitat which is their very identity unlike the non- tribe people. The problem of tribes is nothing but an uncertainty of these two branches of rights.
There is no concurrence in law making and applications of the said laws. Where the Constitution of India guarantees right to livelihood the Forest act justifies the regulation and prohibition of their forest access. The problem of Indian legal
Page | 49 protection is a typical problem of developing countries where they are in the immediate verge of promoting development.
The problem of tribes is not lack of law but the clash of laws. On one side where the law tends to protect the uniqueness of on the other side many laws are made which prejudice the tribal rights by authenticating the govt. or any other agency depriving their rights. Ex. Forest Act, environmental protection act which restricts power to use even enter the forest. The laws as such are validated under the color of being environment protection law.
The protective laws, rules etc laws made for the protection of tribal people have strict procedure with regard to proof of their identity. Chatrapatti Singh has pointed out correctly, How can you expect a tribe to get some evidence of their being tribe in a written form? The govt. which is making laws to protect them must take up the responsibility easing their access to such protection. (SHYAM DIVAM, 2005).
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The execution part of law is not at all emphasized, once the prohibitory or protective laws are made, a major failure occurs at the execution part where forest being a major source of revenue, the officers misuse or consent to the misuse of the forest and forest products often blaming the tribes or repugnant to the interest of tribes. Traders of bamboo articles were barred by State forest officials in order to compel the tribal people to supply the bamboo to a paper mill. The court upheld the rights of the tribes (Fatesang Gimba Vasava v. State of Gujarat. AIR 1987 GUJ 9.). The Andhra Pradesh High court struck down the validity of order permitting deforestation repugnant to the interest of tribal people, for transport of timber. In Om Prakash Bhatt v. State of UP(Om Prakash Bhatt v.State of UP), Holdings to support tourist by Garhwal Mandal Vikas Nigam which deprives the right of access to forest of tribes for pastor etc was ordered to be removed. The danger is looming on the horizon, If the State financed hotels are planted on the bugiyal, five star hotels are waiting to encroach the lands.
Demand of high bribe from nomadic pastoralist to allow them entry into forest as prime minister signed new agreement in Rio “Rio- payment “as it came to be known
Page | 50 are not new in Indian context(Narain, 1998).
Lack of consistency and uniformity, these laws are neither made uniformly nor applied. Some states have very strict forest laws were as some have liberal approach. The access given to the forest dwellers vary as they subjected to the economic interest of State not environmental protection.
HUMAN DEVELOPMENT v. TRIBAL RIGHTS v. ENVIRONMENTAL PROTECTION - ARENA OF HYPOCRISY: –
Though the courts and laws always preached basic rights as more important than development, it has failed to apply the same to the matters for tribal rights to livelihood. Art 21 of the constitution is construed as to provide the right to livelihood but the right is of no significance when it is to be applied to the tribes.
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Forest preservation and protection was no more to be separated from the life of tribal people. (Samatha v. State of Andhra Pradesh, 1997). The court opined that forest are a much wanted national asset, it determined that a scheme to generate electricity is of equal importance and cannot be deferred (Banwasi Seva Ashram v. State of U.P, 1987). Thus the court lifted the prohibition of eviction on all 1800 acres including tribes.
Courts have held several times If one of the reason for the shrinkage of forest is the entry of tribes, urgent steps must be taken to prevent any damage to environment (Pradeep Krishna v. union of india AIR 1997 SC 2040 , Animal and Environent Legal Defences Fund v. Union of India , 1071).Tribal right are violated on the ground that they take for rights for granted”.
Development projects are upheld even if they mean a permanent loss of identity for the tribal people who are nothing without their lands. In 2000, the supreme court opined in Narmada Bachao Andolan case as opposed to the plea of tribal people. Allowing the progress to plunder at the cost of indigenous who know nothing except the forest. The development of people was upheld disregarding the submergence of
Page | 51 human rights of the indigenous population even after them voicing out in recent past, which they can’t do often (Narmada bachao Andolan v. Union of India, 2000).
The decision was carefully deliberated upon and a myriad of factors were used by the Court to come to its conclusion. There are devastating consequences to energy projects that do not take into account the rights and well-being of the tribes .
“Big Dams are to a Nation's "Development" what Nuclear Bombs are to its Military Arsenal. They are both weapons of mass destruction. They're both weapons Governments use to control their own people (Roy, 1999).”
One of the projects that has been approved for implementation in the archipelago is a railway line linking Port Blair, the capital of the island chain, with Diglipur, the largest town on North Andaman Island. The 240-kilometer-long railway line will cut through a protected forest reserve where the native Jarawa live.
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This would increase the exposure of the Jarawa to outsiders – mainly non-tribal settlers and tourists – and impact their culture, health, and way of life, even their survival as a group.
The Andaman and Nicobar Islands are crucial for Indian security. Indigenous populations are paying the price(Ramachandran, 2017).
Bonda tribe population is low and they migrate in search of livelihood. (Jitendra, 2018)
With all laws and practices, environmental degradation they are forced to opt for assimilation, migration, resettlement which is no way on par with their century old life style. The recent census has shown a decline in tribal population reason being migration, inadequate facilities etc.
The hypocrisy of the govt. policies is apparent where they charge and tag tribes as anti- development and anti- national, just because tribes oppose development to protect their basic land which is their multi-generational heritage. Forest mafia in the
Page | 52 name of development is upheld were as tribes are prosecuted and evicted for being a threat to forest. Tribes are intermingled with environment, but their rights are treated as contradictory to environmental protection! how?
Hither or thither the system is as such which victimizes the vulnerable taking for granted their inability to mingle and question the system.
The tribal law in terms of its quality has long way to go. Uniformity needs to be brought in tribal law and laws affecting tribal lives, special privileges to be given, tribal lands must be under their autonomy with govt. being supervising misuse, more concrete ground must be followed to demand compromise of tribal right, tribes must not be treated as ordinary citizen who can find livelihood elsewhere consideration must be given to their extend of difference and ignorance of modern life as ordinary citizen e.g. evicting a tribe which still survives by scavenging for dam is unjustifiable. Giving anything against their will is illegal even development when it is going to people in the plains who have done only harm to tribes directly and indirectly by polluting thus destroying environment due to which they are already prone to repercussions first before anyone. Rather than as opposed to sustainable development they must –
-9- be taken as a means to conserve environment as many native tribes oppose govt. policies to protect environment on which they rely for livelihood.
CONCLUSIONS:-
“Nothing about them, without them”.
The laws at present are ample but their very motto vanishes when it is being overridden by the other laws under the ambit of welfare. Everything is simple even the means to run the life if the law fails to fulfill it is a core injustice and won’t be fair to upgrade us as civilized unlike them anymore. if we deny a very simple demand which are their basic livelihood to demand the sacrifice from them who does not need
Page | 53 development or who are the least beneficial of development for the sake our extra ordinary life style is a legal sin.
It is the directive (Art . 46) and the fundamental duty (Art 51 A (e) and (f) ) on our part to render them their identity that is their livelihood which is enshrined as their fundamental rights.They are said to be unlike us whenever law is applied to them negatively but a positive approach and even more careful approach of law is needed. The modern culture must not be imposed on them, their integration may take time or they may never, but it must be left to their choice to choose their identity as their identity are real, worth, sacred unlike what modern beings possess.
“Tribal people possess a variety of culture and they are in many ways certainly not backward. There is no point in trying to make them a second rate copy of ourselves.” (NEHRU, 2010)
*******************************************
Works Cited
Animal Welfare Board of India v. Nagappa and others, 7 SCC 547 (Supreme Court of India 2014).
Art . 46. (n.d.). “promotion of educational and economic interest of scheduled caste, scheduled tribes and other weaker sections.” . CONSTITUTION OF INDIA.
Art 4 , Indigeous and tribal peoples Convention,1989. (n.d.).
Art 51 A (e) and (f) .(n.d.). A(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to th .
Page | 54 HUMAN RIGHTS OF SEX WORKERS : WHERE HAVE WE BEEN LACKING “Genetics are irrelevant when it comes to sexual rights. Just as gay rights are based on choice and consent, so are the rights of sex workers and prostitution rights. All rights are based on choice and consent.” - Chester brown
A sex worker is a person who is employed in the sex industry. The term is used in reference to all those in all areas of the sex industry including those who provide direct sexual services as well as the staff of such industries Sex workers all over the world face a perpetual risk of abuse. They face continual amount of beatings, discrimination, rape and harassment – sometimes on a daily basis - or that they are often denied access to basic health and housing services. Human rights are fundamental to each and every human being. Prostitution, in reference to the sex workers has been there in practice since ages and its sad as to how still the people involved in it are deprived of their basic human rights due to the stigma that is being attached to it owing to the pathetic mindset of the society and several other factors . The sex workers have got the right to work, right to bodily autonomy, freedom from violence, right to privacy, humane treatment while in detention and freedom of movement. The human rights of sex workers also entails within itself right to health, right to freedom of assembly and association , right to equality and non discrimination with a general right to dignity. The Universal Declaration of Human rights recognizes the dignity of every individual. Whether gay , straight, bisexual, transgendered, man or woman or a sex worker. They are not even recognised as equal citizens, workers, and members of a social and political community with human rights In fact, the existing law casts sex workers simultaneously as dangerous to society and as victims to be forcefully protected from their own choices.
This research paper first introduces the definition of sex worker and then identifies the major stakeholders. Further it discusses the various issues pertaining to the violation of their basic human rights. It will also talk at length about the various rights of sex workers and how they have been jeopardized by the society and the government. This paper would provide insights as to how decriminalization of sex work would help the sex workers attain their human rights like safety rights, minimum wage, health benefits etc. Over the years, India too has seen a growing mandate to legalize prostitution, to avoid exploitation of sex workers and their children by middlemen and in the wake of a growing HIV/AIDS menace and human trafficking. How can justice be done to the sex workers and various challenges in carrying that out in addition to the various possible ameliorations will be the theme around which the entire research paper will revolve.
Page | 55 INTRODUCTION
Human rights are the fundamental rights and freedom that belongs to every individual in the world. The Universal Declaration of Human rights recognizes the right of every individual, be it gay, straight, bisexual, transgendered, man or woman or a sex worker. The belief that human rights should have a set of indispensible and intrinsic set of rights and freedom has its deep root in Britain. The Landmark developments encompassing the same includes: a. The Magna Carta Act of 1215 b. The Habeas Corpus Act of 1679 c. The bill of rights of 1689
A sex worker is a person who is employed in the sex industry. The term is used in reference to all those who are in the areas of sex industry including those who provide direct sexual related services. Most of the individuals who are employed in this industry as sex workers don’t wish to be tainted as criminals and tend to regard the laws against prostitution, pornography etcetra as violating their rights. In most of the countries where sex work has received legalization, the sex workers of all kinds feel that they are disgraced and subjugated in all the fabrics of the society. In many cases, these workers are prevented from seeking legal redressal for assault, rape or discrimination.
Since the usage of red umbrellas by sex workers in Venice, Italy, in 2001 as part of the 49th Venice Biennale of Art – a red umbrella has been the foremost internationally recognizes symbol for sex workers.
March 3rd is celebrated as International Day for sex Workers Rights Day every year. This day began when over 25,000 sex workers gathered in India for a festival organized by a Calcutta- based group called Durbar Mahila Samanwaya Committee (Unstoppable Women's Synthesis Committee), despite protests pressuring the government to revoke the permit for the parade in 2001.June 2nd is celebrated as The International Sex Workers' Day. This day began June 2, 1975, in Lyon, France, when a group of individuals employed in the business of sex work met in a church to express their anger and resentment about exploitative and deteriorated living conditions and the criminalization they undergo because of their work. December 17th is celebrated as The International Day to End Violence against Sex Workers. In 2003, Dr. Anne Sprinkle founded the Sex Workers Outreach Project USA and held a vigil on this day for the victims of the Green River Killer, and this day has been commemorated ever since to remember the victims of violent crimes and fight discrimination of crimes related to sex 81 work.
HUMAN RIGHTS OF SEX WORKERS AND ITS VIOLATIONS
81Global Network of Sex Work Projects, (June 18, 2018 , 12:1 am ), http://www.nswp.org/event/international-sex-worker-rights-day-3.
Page | 56 Before elucidating about the different human rights that sex workers have, let's get clear as to what exactly the term “human rights” means and what all it entails. Human rights can be defined as rights which are inherent to all human beings regardless of language, nationality religion race, sex, ethnicity, or any other status. Everyone is entitled to these rights without discrimination. But the sad reality is
82 that the sex workers, although being humans, are often deprived of these rights.
Non-discrimination; privacy; equality before the law; highest attainable standard of health; employment, just and favorable conditions of employment; freedom from arbitrary arrest and detention and cruel and inhumane treatment; and protection from violence are some of the major
83 human rights of sex workers.
The fact that sex work often involves poor health, financial exploitation and physical and sexual abuse is undeniable. However, the root cause of these abuses lies in the stigmatization and marginalisation of sex work in the society and the abuses are nowhere intrinsic to sex work. The violation of human rights of sex workers occurs almost in every field but in the areas of law, health, safety and education,
84 their rights have been jeopardized the most.
The various areas of concerns related to the human rights of sex workers are:
1. HEALTH AND PRIVACY:
According to the universal declaration of human rights “the highest attainable physical and mental health standards “are a basic human right. It is notable that a comprehensive health care inclusive of reproductive care is a basic right of sex workers.
Sex workers are at a high risk of being infected with HIV. The approach towards human rights of sex workers often lacks in public health care interventions, holistic views and perspectives in research on prostitution. The various restrictive policies such as forbidding the selling and advertising of sex, in different countries, criminalise sex workers. They, in turn, avoid state institutions including those providing health care and thus it proves harder to protect their health.
In hospitals of Kolkata, if a woman, who also happens to be a sex worker, visits the hospital then it is compulsory for the doctors, to take their blood sample. No justification is provided for the purpose of
82 Human Rights, United Nations,(June 10,2018,08:51 P.M),http://www.un.org/en/sections/issues- depth/human-rights/ 83Implementing Comprehensive HIV-STI Programmes, Redux final(June 10,2018,9:00 PM),http://www.who.int/hiv/pub/sti/sex_worker_implementation/swit_chpt2.pdf 84SampadaGraminMahilaSanstha (SANGRAM) & VAMP ,Rights and Issues of People involved in Prostitution and Sex Work in India(June 10 ,2018,09:36 PM) ,http://www.sexualrightsinitiative.com/ wp-content/uploads/India-UPR-1.pdf
Page | 57 the test. This clearly amounts to gross violation of sex worker’s right to information and right to
85 privacy.
It is the need of the hour to create as many opportunities as possible for sex workers so that they can take a lead in protecting themselves and others.
2. EXPLOITATION AND VIOLENCE:
To live a life free from violence and exploitation is every individual’s right. Despite this, sex workers are routinely insulted, harassed, assaulted and exploited by various authorities including the police and the government. The physical vulnerability and poor health of sex workers and also their cynicism toward legal authorities are the adverse effects of the exploitation only. Criminals often see them as soft targets owing to the fact that these sex workers are often reluctant to report attacks to the police due to the fear of suffering further injury or insult. In spite of their legal status, sex workers like any other individual, deserve as much safety against physical and sexual assault. However, these rights are often ignored.86.
Raids result in the arrest of sex workers and they further get detained and deported under conditions that embody gross human right violations. Sex workers in certain Asian countries like India, sustain serious injuries during their attempt to escape the rescues which are conducted by the same law enforcement officials who harass them and ask for money and sex. Justified as rescue and rehabilitation measures or a way to protect the society from immoral behaviour, these raids often conflate trafficking and sex work. They fail to draw a distinction between people involved in it voluntarily and involuntarily and also people who do not sell sex despite living in red light areas.
These rescue raids have been proved to clog the human rights of women and children who get caught in these interventions.
3. IMPUNITY AND DISCRIMINATION :
Violence against sex workers can be termed as result and exemplification of gender inequality and discrimination which are directed at men, women who are involved in these practices and transgender not conforming to heterosexual norms or the way society wants them to be. They are treated as outcasts for involving in a profession which is considered immoral. Despite the provision of equality before the law, sex workers are treated unequally before the law and in the society.
85 Public health and the human rights of sex workers(June 11,2018,9:41 PM),http://www.who.int/hiv/topics/vct/sw_toolkit/public_health_human_rights_sw.pdf 86 UNAIDS, “Female Sex Worker HIV Prevention Projects: Lessons Learnt from Papua New Guinea, India, and Bangladesh (Geneva: 2000)”(June 11, 2018, 9:00 PM),http://data.unaids.org/Publications/IRC-pub05/JC438-FemSexWork_en.pdf.
Page | 58 The violence and exploitation of sex workers at the hands of police officials convey the discrimination in accessing the criminal justice system. Police officials have this pathetic and discriminatory notion that sex workers cannot be raped, undermining the provision of sex workers’ protection under laws against sexual violence. Even the sex workers who do seek justice, experience police inaction and their unwillingness to report crimes even at places where sex work is legal. On the basis of all the injustices and humiliation that they have to face, sex workers describe a profound sense of futility and an absence of protection from the criminal justice system.
The current issue of HIV/AIDS has further stigmatized sex workers since they are being considered as the vectors of the disease. On top of that, public health officials have labeled women as core transmitters disregarding the web of political, economic and social factors which affect the heterosexual transmission of this virus. All of this has culminated in a more difficult time for the sex workers to obtain a proper healthcare and the overlooking of the fact that they could also be the most
87 effective actors in preventing the spread of HIV.
4. WORK AND LABOR PROTECTION:
The guidance given by the international labor organization on HIV and the workplace environment includes sex workers too and lays an emphasis on workplace safety. Sex workers could be exposed to harsh and unsafe working conditions in the absence of LABOR protection, with few options for redress. Due to the fear of abuse from their managers, sex workers have little or no control over their work, for example- their inability to decline specific clients or sex acts and to enforce condom use with clients. Also, the fear of losing employment makes it difficult for them to report LABOR abuses with their managers getting criminalised. Sex workers do not have even basic LABOR rights such as compensation for workplace injury, health insurance, or unionization, in most places. Earning is another area of work where they are exploited. Most of the amount earned by the sex workers and especially the child sex workers is seized by the brothel owners or their managers and the remaining
88 amount is not sufficient to buy them even one meal a day.
87MeenaSeshu,Sex Work and HIV/AIDS: The Violence of Stigmatization, UNAIDS Global Reference Group on HIV/AIDS and Human Rights(June 20,2018, 11:45 AM), http://data.unaids.org/topics/human-rights/hr_refgroup2_11_en.pdf?preview=true 88Michele R Decker, Anna-Louise Crago, Sandra K H Chu, Susan G Sherman, Meena S Seshu, Kholi Buthelezi, MandeepDhaliwal, Chris, HIV and sex workers 4, Human rights violations against sex workers: burden and effect on HIV(June 13.2018,11.54 A.M),https://www.hivlawandpolicy.org/sites/ default/files/Human%20Rights%20Violations%20Against%20Sex%20Workers.pdf
Page | 59 5. EDUCATION :
One of the major constraints among sex workers and their children is lack of education. Various studies suggest that women involved in sex work are considerably less educated than the surrounding population. In a baseline survey of the community is Sangli, it was found that less than 2% of the women have been to a school of any kind, and less than 50% of that 2% have finished high school. The major concern here is that the stigma related to the women involved in sex work is not only limited to her; it further gets carried down to her children in spite of their professions. The discrimination, ostracisation and isolation of the children of sex workers often embarrass them and end up having adverse effects on their education. This is the reason as to why the dropout rate of this community is very high with children abandoning school for multifarious reasons like failed test scores, harassment by teachers and
89 classmates and many others.
SEX WORK AND SEX TRAFFICKING:THERE IS A DIFFERENCE!
The terms sex trafficking, sex work and prostitution are often used interchangeably. The meaning of these terms are often amalgamated into one for its usage. While both sex work and sex trafficking involves prostitution by definition, sex work encompasses an inclining engagement in commercial sex. The tendency of treating trafficking and prostitution on equal pedestals has a long and problematic history. Social discussions and legislations have time and again blurred or denied any difference regarding the same – this has made things worse rather than better for those already in this labyrinth. Trafficking of individuals into sexual slavery is undeniably gross abuse of fundamental human rights. Men, women, children, all are trafficked majorly in this hideously thriving business. Traditional standards of moral policing have however been a major influence on legislation and policies pertaining to human rights of sex work.
Sex trafficking is often fueled by sensationalizing and sometimes salacious accounts of sexual abuse. It leads us to ignore other forms of sexual abuse and illegal trafficking and henceforth, also denies help and protection to all those individuals thriving poorly in this
89SampadaGraminMahilaSanstha (SANGRAM) & VAMP ,Rights and Issues of People involved in Prostitution and Sex Work in India(June 10 ,2018,09:36 PM) ,http://www.sexualrightsinitiative.com/ wp-content/uploads/India-UPR-1.pdf
Page | 60 industry. Also, treating sex work as if it were the same as sex trafficking neglects the bitter realities of sex work. A sex worker is a person who is employed in the sex industry and offers sexual services in exchange of money. Individuals engaged in this business are not coerced or tricked, they choose it voluntarily. However, sex workers all over the world would face a perpetual risk of abuse.
One of the major agenda of the sex worker activists is to bring about a radical change in improving sex working conditions. However, this poses impediments and the same seems impossible as sex work is regarded as another form of slavery. Sex worker rights needs to be organized, free from harassment and availability to health care.
ROLE OF INTERNATIONAL ORGANISATIONS
A number of international organizations work for the advocacy of human rights of sex workers. The international human rights law is important and very much useful for standing up for the human rights of sex workers which they are denied at every arena. A number of Conventions and other documents can be perused to identify the violation of fundamental rights of sex workers, the duties of the government and police at all levels in preventing the violation of human rights and addressing these violations. There have been many International human rights treaties that has advocated for the rights of sex workers. These treaties ensured respect for human rights law, including the fundamental duty to prevent such abuse and violations and investigate the reasons and causes of such violations. It even addressed the remedies and reparations to those who have been a victim of such human rights violations and to punish the aggressor.
The United Nations Declaration of human rights, The ICCPR ( International Convention on Civil and Political Rights) and ICESR (International Covenant on Economic, social and cultural Rights) are together known as the International Bill of Rights. The Declaration is the foundation stone for International Human rights Law. Article 6 of CEDAW requires states to take measures to suppress all forms of traffic in woman and
90 exploitation of the prostitution of women.
90Kim Mosolf, INTERNATIONAL HUMAN RIGHTS STANDARDS AND THE RIGHTS OF SEXWORKERS, (June 18, 2018, 12:25 a.m.), http://sexworkersproject.org/
Page | 61 DECRIMINALISATION OF SEX WORK: THE SOLUTION TO THE PROBLEMS
For enabling access to justice to the sex workers, who are often the victims of severe crimes at the hands of authorities, decriminalization of both sale and purchase of sex is paramount. If we look into their lives, several human rights violations get revealed which need immediate address. The questions regarding the reduction of violence against them, to ensure proper medical care and to prevent HIV, and as to how discrimination and stigmatization that make them prone to abuse could be stopped, are the most important ones and the only answer to all these is “decriminalization of sex work”.
The aim of decriminalization of sex work is to ensure that all workers practising this profession have access to fair; safe and respectable working conditions and their human
91 rights remain protected and intact.
The laws that criminalise brothel keeping and sex work often lead to the arrest and prosecution of sex workers. The routine eviction of sex workers from their homes under the pimping laws of Norway is the best example to prove this. We have so many pathetic notions regarding sex work like the working together of two sex workers even for safety purposes is treated as a brothel. To deal with the acts of exploitation, abuse, harassment and trafficking of sex workers, the amendment in the existing laws and refocusing on them are the need of the hour. We need to do away with the laws which end up in only criminalising, putting the sex
92 workers in danger and jeopardizing their interests and rights.
Not only the sex workers, but their whole profession faces the brunt of discrimination. Whenever something wrong happens in other professions and there is exploitation, the job itself is never blamed. On the contrary, even when something minute goes wrong with sex work, the entire industry and the profession is held to be wrong, to be immoral. It is reasonable that the employees in other sectors are not made to assume that harassment, exploitation and abuse is a part and parcel of their job and that their job should not even exist.
91 Daniela Araya, Sex worker by trade: how far do human rights go? ,Equal times(June 20,2018, 11:51 PM), https://www.equaltimes.org/sex-worker-by-trade-how-far-do#.WyT9DKczbIU 92 Catherine Murphy, Here's why we at Amnesty backed the decriminalisation of sex work, Independent (June 14,2018,5:35 P.M) ,https://www.independent.co.uk/voices/comment/heres-why- amnesty-backed-the-decriminalisation-of-sex-work-and-our-response-to-the-criticisms- 10453954.html
Page | 62 However, sex workers enter their industry with all these presumptions in their mind beforehand.
International organizations such as amnesty international, the world health organisation and the international labor organization have shown their support for the decriminalization of sex
93 work along with every organization which works for the rights of sex workers.
The criminalization of something which is commercial and consensual (which most of the activity related to sex work is) is so pathetic and unnecessary. It not only undermines the sex workers’ access to justice but also increases and fuels violence against them. The criminalization of sex work weakens their ability to maintain health, infringes their rights such as sexual autonomy, and denies the protection of LABOR laws and so on. It culminates in the marginalization, isolation and limitation to their options. In aa way, it legitimizes
94 discrimination, we can say.
By decriminalising prostitution, we would be done away with all laws that criminalize sex work and penalise the workers. If we have to put the workers in a safe place, we will have to create an atmosphere which will help them in attaining health services and easy access to justice. Decriminalization would further help in combating trafficking and abuse. We have previously discussed as to how sex workers are hesitant in reporting abuses or crimes committed against them, to police and other law enforcement authorities, in areas where sex work is considered illegitimate and is criminalised. By decriminalising sex work, trafficking in women would be reduced to a major degree as women could speak to the police without any hesitation and the fear of getting arrested. It is disgusting if we criminalize sex work or prostitution only because we consider it to be something which is morally wrong and thus
95 should be criminally punished.
93 Lisa Marie, Time to fully decriminalize sex work, The Age(June 15,2018,03:50P.M), https://www.theage.com.au/national/victoria/time-to-fully-decriminalise-sex-work-20180301- p4z2b4.html 94 Maria NengehMensah& Chris Bruckert, 10 REASONS TO FIGHT FOR THE DECRIMINALIZATION OF SEX WORK(June 20,2018, 11:55 PM),http://maggiestoronto.ca/uploads/File/10reasons.pdf 95 Linda Tirade, Why We Should Decriminalize Prostitution, Daily Beast,(June 16 ,2018,2:05P.M), https://www.thedailybeast.com/why-we-should-decriminalize-prostitution
Page | 63 Sex workers see their profession as nothing more than a business and the only purpose is to collect their fees in return for their sexual performance. Like all other workers, they aim to keep their professional life and personal life separate from each other. Decriminalization recognizes the fact that sex work is an activity that people, being adults, do it all with their consent.
Although decriminalization is not an end to all the problems that exist in the area of sex work, it is definitely a step in the right direction to curb the evils and ills prevailing in this profession. However, Legalisation is definitely not the answer to all this. That is a system where the state itself is called a pimp. On the contrary, decriminalization secures the sex workers and put a check on the state from prosecuting the workers for consensual sexual activity.
We already have laws that punish slavery, rape, human trafficking, assault, sex with a minor and in this scenario if we have any further laws on criminalization, then it would only make things worse for the sex workers by making things dangerous, difficult and confusing for
96 them.
Many countries criminalize all aspects of sex work which eventually result in denial of the rights of sex workers to seek protection in case of any abuse or harassment. This whole system leads to the creation of a climate filled with impunity culminating in violence and discrimination which in turn, makes them more vulnerable to diseases like HIV and AIDS. Thus, it is high time that sex work got decriminalized and seen as a crucial priority so that the
97 goal to stop all kinds of violence and evils against the sex workers is achieved soon.
96 Rita Brock, Why Prostitution Should Be Decriminalized, Alternet(June 16 ,2018,2:45 P.M) ,https:// www.alternet.org/story/101194/why_prostitution_should_be_decriminalized 97Anna-Louise Crago, Our Lives Matter :Sex Workers Unite for Health and Rights,Sexual Health and Rights Project, Open Society Institute(June 20,2018,11:59 PM),https://www.opensocietyfoundations.org/sites/default/files/Our%2520Lives%2520Matter %2520%2520Sex%25
20Workers%2520Unite%2520for%2520Health%2520and%2520Rights.pdf
Page | 64 CONCLUSION AND SUGGESTIONS
Individuals engaged in the trade of sex continuously face ubiquitous violence, discrimination, stigma and abuse, which consequently limit the way in which individuals engaged in sex workers navigate the workers. The continuous and systemic brutality and maltreatment encounter, often without legal course is because of many reasons – person with HIV, or people having histories of drug use, or folks from immigrant workers. For the sex workers to avail and enjoy their rights, all the stereotypes, pathetic mindsets and notions regarding sex work need to be done away with. There exists a big problem with the rescue process too. We need to understand that all the sex workers do not want to be rescued since they are involved in such a thing voluntarily. For this, a fine line needs to be drawn between human trafficking and sex work as a profession. You rescue a victim and not an employee from his/her job. We need to get that they do not corrupt society and, stop considering this profession as immoral. It is high time that the character building of sex workers by the society got stopped. Every sex worker is not a HIV carrier or a victim of it. Rather than expressing pity on them, awareness and means to tackle this problem should be promoted. The sex workers are humans and they have all the capability to fight for their right. They should be encouraged and empowered so that they could rebel against whatever wrong is done to them all by themselves. Although they are exploited, harassed, abused and discriminated, they surely do not futile pity. From fighting against all the abuse and exploitation to breaking down the stereotypes of the society, their life is no cake walk and is full of hardships. All they need is our support, rational approach. We, as a society need to recognize and destroy our misconstructions and baseless, unfounded fears.
Although the various steps and measures taken to improvise the condition of sex workers have been able to show great progress in affirming the human rights of sex workers but still they have a long way to go as the countries around the world continue to promote globalized economy. There would be an up gradation in the functioning of this whole system as there would be a total commercialization of the workers where they would be given training as well. Although the commercialization would lead to sex workers losing their independence and poor sex workers having no place in this set up, but it would be helpful in putting a check on the authorities and maintaining a stricter and organised environment. The middle class
Page | 65 men who harass and abuse the sex workers would no longer be able to do so as they will now have to go to the upper class constituting only high level escorts.
Supporting sex worker rights is the best way to promote safety and health and individuals and it also helps to reduce crime and assault. Sex workers should be provided with harm reduction services and advocacy. The sex workers should have the accessibility to health care, they should also have their right and freedom to report crime to authorities and shouldn’t be denied the same. They should also have the right to organize and work together for increased safety. Also, the sex workers should know about the comfort that their family members will not subsequently be charged for “living off” the proceeds of sex workers. More policies should be coming in scenario to help sex workers, thus protecting their fundamental rights. Sex rights activists and NGOs should be working actively for the cause of sex workers, to help them provide a safe haven to the folks engaged in this business.
Naimish Tewari Abstract
Passive Euthanasia has been legalized in India, but the state has discredited the challenges and responsibilities which come with it. This paper will be an analysis on euthanasia and its present scenario in India, and also of the judicial pronouncements in the cases of Aruna Ramchandra Shanbaug v. Union of India98and Common cause v. Union of India99by the Hon’ble Supreme Court of India. The paper will also figure out the discrepancies in guidelines provided by the apex court for the regulations of euthanasia. Further, it will also compare these guidelines for regulations with the laws in several nations for euthanasia. The paper aims to explore a need for a legislation with regard to euthanasia with respect to the 196th and the 241st reports of the law commission of India. The paper has commentary on the concept of mercy killing and need for the recognition of ‘right to die’ under the ambit of Article 21 and the need for the recognition of ‘Free Medical Aid’ under Article 21.
The paper will further question the validity and analyze the repercussions of section 306 (Abetment of suicide) & 309 (Attempt to commit Suicide) of the Indian PenalCode on the society in the light of Mental Health Care Act100 and the cases of P Rathinam vs Union of India101 and Gian Kaur vs. State
98Aruna Ramchandra Shanbaug v. Union of India (2011) 4 SCC 454 99Common cause v. Union of India (2018): SCC Online, SC, 208 100Mental Healthcare Act, 2017
101P Rathinam vs Union of India (1994) 3; Supreme Court cases 394-430
Page | 66 of Punjab102. Under this, the author would want to question the logic of upholding section 306 as a specific crime when the substantial crime under Section 309 has been deemed decriminalized. Hence, it will question the legality of special provision in the Indian PenalCode as ‘Offense of Abetment of Suicide’ when abetment is already defined under Section 107 of the Indian PenalCode.
Introduction
The word euthanasia owes its existence from Greek, which means ‘Good Death.’ It is a combination of two words; ‘Eu’ meaning good and ‘Thanatos’ meaning ‘Death.’ History in itself gives many definitions and meanings to euthanasiain the ancient Greek, the citizens were given the right to end their lives if they were suffering from a terminal disease, the city magistrates of Athens were given a supply of poison to aid the suffers with a clean death without suffering and was known as the ‘drink of Hemlock’103. The first time when this concept came into existence, it was ‘Suetonius,’ a historian who has explained that how Emperor Augustus "dying quickly and without suffering in the arms of his wife, Livia, experienced the 'euthanasia' he had wished for”104. In the Oxford dictionary, “Euthanasia” has been defined as “the painless killing of a patient suffering from an incurable and painful disease or in an irreversible coma”. It should be understood that euthanasia, literally means taking someone’s life, for the sake of reliving him from the pain the person is going through. House of lords defined euthanasia as "a deliberate intervention undertaken with the express intention of ending
105 a life, to relieve intractable suffering”
In the recent judgement of Common Cause v. Union of India,106 the Hon’ble Supreme Court of India, has legalized passive Euthanasia and has issued directives to the state to implement it, and the apex
102 Gian Kaur vs. State of Punjab (1996) 2 SCC 648 103Michael manning, Euthanasia and physician-assisted suicide (Paulist Press, 1998) 104 Philippe Letellier, chapter: History and Definition of a Word, in Euthanasia: Ethical and Human Aspects by Council of Europe 105 Harris, NM. (October 2001). "The euthanasia debate".J R Army Med Corps. 147 (3): 367–70 106Common cause v. Union of India (2018): SCC Online, SC, 208
Page | 67 court of our nation had acknowledged that right to die with dignity comes under the ambit of right to life with dignity. This judicial pronouncement has paved a way for the people of India to write themselves a ‘living will’ and then the people can terminate their life when they are terminally ill or in a vegetative state. It is to be understood that everyone has a right to life which is also guaranteed in the Constitution of India under article 21107 but the question which has been debated by many philosophers, jurists and intellectual men is that does an individual have a right to eliminate his own life at his own will? Euthanasia has been legally allowed with certain guidelines laid down in the case of Common Cause v. Union of India108the guidelines were issued preceding from the case of Vishakha and Others v. State of Rajasthan109till the time there is a legislation passed by the Parliament of India. It took years for the Parliament to bring a law in force which was thethe Sexual Harassment of Women at Workplace(Prevention, Prohibition and Redressal) act110 which came into force in 2013.
The concept of euthanasia and right to die also brings into question the constitutional validity of section 306 and 309 of the India Penal Code111 which criminalizes abetment of suicide when the suicide has happened (section 306) and the attempt of suicide (section 309) though these provisions have been Constitutionally tested first in P Rathinam vs Union of India112and then in Gian Kaur vs. State of Punjab.113There has been a lot of advancements in Indian laws and their interpretation since then.
Right to life, which the most absolute right in all fundamental rights in our Constitution is a home for many implied rights which comes under its ambit be it, right to education or right to information or right to free legal aid, but the sad part is that this right which includes ‘life’ does not mandate free medical aid. Indeed, it can be inferred from the interpretation of article 21 of the Constitution of India that, right to medical care comes under article 21 as a part of life and liberty but not, free medical care. The conditions of the government hospitals in India is a well-known fact. An analysis published in the ‘Lancet’114 said that 1.6 million people in India die cause of poor health care every year. Therefore, there is a need to recognize right to free medical aid as a fundamental right.
107The Constitution of India, 1950. 108Common cause v. Union of India (2018): SCC Online, SC, 208 109Vishakha & Ors. V. State of Rajasthan AIR 1997 SC 3011 110 Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 111Indian Penal Code, 1860 112P Rathinam vs Union of India (1994) 3; Supreme Court cases 394-430
113 Gian Kaur vs. State of Punjab (1996) 2 SCC 648 114Health care kills 16 lakhs in India every year, finds study, by Malathy iyer, September 6, 2018. Last retrieved on 21st of February 2019. https://timesofindia.indiatimes.com/india/poor-healthcare-kills-16- lakh-in-india-every-year-finds-study/articleshow/65693980.cms
Page | 68 Objectives
• This paper will explore the different aspects of euthanasia and the challenges which come with it. • This paper will try to establish a need for a legislation for the execution of euthanasia and will analyze the guidelines provided by the court for euthanasia. • This paper will comment on the Constitutional validity of section 306 and section 309 of the 115 Indian PenalCode.
Euthanasia In India & Its Present Legal Scenario
On the 9th of March, 2018, euthanasia was legalized and the guidelines on how to execute euthanasia were given by the apex court of our nation. It permitted withdrawal of life support to the sufferers who were in a PVS (permanent vegetative state) and it also allowed people to write their own living wills. The question of euthanasia was also addressed in the case of Gian Kaur vs. State of Punjab,116where the court held that euthanasia can only be permitted if the legislature of our nation makes a law on euthanasia, but the Supreme Court has disagreed from its statement in the case of
117 Common Cause v. Union of India.
Classification Of Euthanasia
1. Involuntary euthanasia – this type of euthanasia is conducted against the will of a person 2. Non-voluntary euthanasia – this type of euthanasia is conducted when the consent of the patient in unavailable. 3. Voluntary euthanasia – this type of euthanasia is conducted with the consent of the patient, and has been legalized in India. 4. Active euthanasia – the acceleration in death is caused by any positive act. 5. Passive euthanasia – withdrawal of life sustaining steps.
115Indian Penal Code, 1860 116 Gian Kaur vs. State of Punjab (1996) 2 SCC 648 117Common cause v. Union of India (2018): SCC Online, SC, 208
Page | 69 It is to be noted that active euthanasia is forbidden in India and comes under the ambit of section 299 & 300 of the IPC.118Only passive euthanasia has been allowed and active euthanasia is still a heinous offence.
Philosophy of Euthanasia It is an undisputed fact that life is mortal, no human being can exist forever. Each and every living being who has taken birth on this earth has to experience the wrath of the god of death one day, and this life has a specific age. Siddharth,on seeing an old dilapidated man on the street, wondered how his old age would be, and in order to achieve nirvana he renounced life, his attempt was successful
119 and became lord Gautam buddha and achieved his purpose of life.
The debate on euthanasia began when a calf was ailing in Gandhi’s Ashram in 1928 despite every possible medical effort, there was no decrease in the calf’s pain. It was too unbearable for it that could
120 not even change its side, and hence Gandhi decided to ends its life.
121 “I am the master of my fate; I am the captain of my soul”
This quote, by William Ernest, clearly points out the fundamental truth that each man wishes to live life with all kinds of happiness in good health, and simultaneously no one in this world wishes to live their life in pain, suffering and agony, and therefore the concept of euthanasia came into existence which allowed people to end their life if they do not wish to continue with their life rather than living it in pain and illness. Charles Lugosi said that the quality of life in today’s world matters the most and
122 the ‘sanctity of life ethics no longer dominates American Philosophy’
The concept of ‘ethical egoism’ which was put forward in today’s world by Thomas Hobbes in Leviathan lays down that if any action results in personal good that it is right, and therefore euthanasia can be concluded as an act of ‘self-benefit’ and hence an ‘ethical action’ 123 and hence euthanasia is also justified as a self-regarding activity for the human beings to end their pain and end their life if they do not wish to continue with it.
Euthanasia and TheConstitution Of India “Reservation of life is of most importance, because if one’s life is lost, the status quo ante cannot be
124 restored as resurrection is beyond the capacity of a man”
118Indian Penal Code, 1860 119 Introducing Buddha: A Graphic Guide by Jane Hope & Borin Van Loon 120 Navajivan, 30th September 1928, by Mahatma Gandhi 121 Henley, William Ernest (1900). Poems (Fourth ed.). London: David Nutt. § 119. 122 Charles L. Lugosi “Natural disaster, unnatural death: The killings on the life care floors at Tenet’s memorial centre after hurricane Katrina” issues in law and medicine, Vol. 23, summer 2007. 123John Keown, euthanasia, Ethics and Public Policy (Cambridge: Cambridge University Press. 2002) § 37 124Parmanand katara v. Union of India 1989) 4 SCC 286
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Article 21 of the Constitution of India125 preserves human life, it is to be understood that right to life is unalienable126 even in the cases of emergency127 and right to life has no meaning if the right to life with dignity is separated from it. Right to die with dignity comes under it and so comes the concept of passive euthanasia. Stefania Negri has said that euthanasia “essentially developed within the framework of the universal rights to life and to human dignity”128 and this establishes the relation between the Constitution of India and the ‘end-of-life’ decisions.
Meaning of Dignity & Right to Die
It can be said that the Constitution guarantees human life with dignity and therefore a right to die with dignity, but the question so arises is who defines dignity? the supreme court clearly stated in the case of Gian Kaur vs. State of Punjab129that there is no right to die, but now in the case of Common cause v. Union of India130right to die with dignity has been recognized as a fundamental right, the first and the most simple question arises which comes in one’s mind is that what is dignity? the court said that a person has a right to die with dignity, if he is in a terminal condition or in a PVS state as his life is not dignified, but what about an old woman who has been abandoned by her family and has no urge to live ? or what about a human who has no place to live, has to strive for his survival daily is that life dignified ? if a person who is living on the food which he finds in the garbage is that life dignified ? no, it is certainly not, these people will be forced to live like the way they are living even if they wish to die, the state shall set standards of dignity and not individual people, the right to self-determination has no place.
The Concept of Mercy Killing
The Constitution of India131 has recognized the right to die with dignity. Therefore, a question that should be put forward is that, why can’t mercy killings be allowed? If an individual in his opinion, is not having a dignified life, does he not have the right to end it? Why is the State refraining from awarding people the right to die? If passive euthanasia can be allowed why can’t mercy killings be? If a person who is suffering from a terminal disease and is not living a dignified life, then is a manual
125Constitution of India, 1950 126 Justice K.S. Puttaswamy v. Union of India (2017) 10 SCC 1 127Article 359, Constitution of india, 1950. 128Stefania Negri,” Universal Human Rights and End-Of-Life Care” In S. Negri. Advance Care Decision Making in Germany And Italy: A Comparative European And International Law Perspective, Stringer 2013, At § 18 129 Gian Kaur vs. State of Punjab (1996) 2 SCC 648 130Common cause v. Union of India (2018): SCC Online, SC, 208 131 Constitution of India, 1950 Page | 71 scavenger living a dignified life? Or a person who is a beggar, who has to beg every day in order to live his life, will the state now dictate to the people what dignity is?
Hinduism has accepted the ‘right to die’ the people practicing Hinduism if they are going to through a terminal disease or they have no responsibilities or ambitions left in them, then they can end their lives through a ‘non-violent’ practice by fasting which is known as ‘Prayopavesa’132 Jainism also has acceptance for the right to die, by a practice known as ‘Santhara’ in which by the way of suicide one can attain spiritual state.
Countries such as Belgium, Switzerland, Netherlands recognize the right to die, and allow physician assisted death. A man known as David Goodall who was 104 years old flew across the ocean to end his life In Switzerland because he wanted to die, and said "I no longer want to continue life. I'm happy
133 to have the chance tomorrow to end it." He went to Basel and on his own will, ended his life.
The Indian laws do not allow mercy killings, but it is difficult to distinguish it from euthanasia when right to die with dignity has been incorporated under the right to life, and who will define dignity for an individual is still a mystery.
Analysis of The Guidelines Provided By The Apex Court For Passive Euthanasia & A Need For Legislation
In the judgement of Common cause v. Union of India134the paramount court of India laid down several guidelines for the execution of euthanasia, what should be understood that these guidelines can be followed and implemented only by rich people who can afford high medical standards.
It is to be understood that the entire judgement which came was on how to withdraw life support of a person who is terminally ill, the question is what if that person without following these guidelines simply opts out of medical treatment by just not paying the medical fee there is no law to provide free
132Assisted dying: Four problems, one simple solution by Juliet Guichon, December 28, 2015, last retrieved on 20th of February 2019. https://www.theglobeandmail.com/opinion/assisted-dying-four- problems-one-simple-solution/article27924838/ 133David Goodall: Australian scientist 104, ends life ‘happy’ by Frances Mao BBC news, last retrieved on 20th February 2019. https://www.bbc.com/news/world-australia-43957874 134Common cause v. Union of India (2018): SCC Online, SC, 208
Page | 72 medical aid, and the hospitals won’t function till they are provided with money, they will anyway remove the life support systems and the patient will die, why would anyone follow such a long procedure?
The guidelines conveys a two-step procedure where a hospital board constituting of four doctors of 4 specific fields will analyze and then submit their report to the district collector and then the district collector will form another board who will re affirm the decision, the question is the judgement does not specify any time limit for it, till when will the person lie on his death bed like that when he is already suffering so much.
The medical system in India is not that advanced that the level of qualifications which the court has asked for the board of doctors will be available everywhere and therefore not everyone can avail euthanasia. It is also to be understood that there is no sanction on the doctors if there is any mistake while denying euthanasia. The parliament should intervene and should make laws on this subject of passive euthanasia on the basis of this judgement and even the reports of the 196thlaw commission135 and even the 241st law commission136 proper sanction should be invoked and the method should be made simplified and accessible to every person in the country.
Euthanasia and Crime
The legalization of euthanasia has paved a way to reconsider the Constitutional validity of section 306 & 309of the Indian Penal Code137 the question of its validity came first in the case of P Rathinam vs Union of India138where the court struck down section 309 and held that right to life, included right not to live, but this was overruled in the case of Gian Kaur vs. State of Punjab139 section 306 and 309 of the IPC140 were held Constitutionally valid, but the question comes again that after these advancements are both these sections actually Constitutionally valid. Section 306 which makes abetment of suicide as a criminal offense, the question is what is the point of making abetment of suicide as a crime, when suicide in itself is not a crime, and why does section 306 as a specific law does not incorporate in itself abetment to attempt to suicide as a crime, and while section 309 has been
135Law Commission Of India 196th Report On Medical Treatment To Terminally Ill Patients (Protection Of Patients And Medical Practitioners) 136 Government Of India Law Commission Of India Passive Euthanasia – A Relook Report No.241 August 2012 137Indian Penal Code, 1860 138P Rathinam vs Union of India (1994) 3; Supreme Court cases 394-430
139 Gian Kaur vs. State of Punjab (1996) 2 SCC 648 140Indian Penal Code, 1860
Page | 73 in a way decriminalized by the Mental Health Care Act141 why not scrape it off the PenalCode142 and when suicide is not a crime, attempt to suicide is not a crime, then why is abetment of such a thing a crime ? and even after the procedure laid down is that a person who has been charged with section 306 has the onus to prove that his actions did not lead to the abetment of act, rather than the conventional way. The parliament should give a thought about it.
Consent
Another challenge after the legalization of euthanasia is that, in a nation like India it can easily be misused. People can misuse this provision and ask for euthanasia for their ailing parents in order to get their property. Another challenge is that one who is in a PVS state has some consciousness and what if the person has written his living and while in a vegetative state he wishes to withdraw from that living will and he wants to continue with his life? What if there might be a new medical advancement in future that might cure the person if he might have lived? Such questions need to be addressed and the society needs an answer for them.
Criticism
The Holy Bible considers suicide as an immoral act and death as a curse143 and euthanasia hence is an immoral act. Immanuel Kant also believed that 'man cannot have, the power to dispose of his life'144 the criticism emerges from the fact that life has been given by the almighty god and only he has the power to take it away from a person and a person does not have the right to end it. It also hampers the respect of the society for the ‘sanctity of life’ and it may have been given against the ‘best interests of a person’
There is no proper way of regulating euthanasia. Crime will accompany euthanasia and in course of time euthanasia will be normalized and everyone will start asking for it and it will result in bad care for the people who are terminally ill as it will be a set norm that everyone will opt for euthanasia.
141Mental Healthcare Act, 2017
142Indian Penal Code, 1860. 143Deuteronomy 30:19, The Holy Bible. 144Kant, I. 'Duties towards the body in regard to life', Lectures on Ethics, trans. Louis Infield (New York: Harper and Row, 1986).
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Conclusion
From this paper we can conclude that euthanasia is something which is very difficult to regulate.The Supreme court has taken a way, providing guidelines but they are not sufficient. The paper explains that there is a need for a proper legislation by the parliament, to fix liabilities and sanctions if there is any discrepancy in carrying out the process of euthanasia.
The recognition of right to die with dignity has now questioned the Constitutional validity of many
145 laws including section 306 and 309 of the IPC
What can be inferred further is that there is a need to define dignityfor an individual because dignity being an abstract concept is subjective in nature, and therefore, right to die with dignity has no meaning until dignity has been defined.
145Indian Penal Code, 1860
Page | 75 “Life and death are inseparable. Every moment our bodies undergo change life is not disconnected
146 from death. Dying is a part of the process of living.”
- JUSTICE D.Y. CHANDRACHUD
JUDGE, SUPREME COURT OF INDIA
Bibliography
1. The Constitution of India, 1950 2. The Indian PenalCode, 1860 3. Kant, I. 'Duties towards the body in regard to life', Lectures on Ethics, trans. Louis Infield (New York: Harper and Row, 1986). 4. Introducing Buddha: A Graphic Guide by Jane Hope & Borin Van Loon 5. Williams, G. (1957). Sanctity of Life and the Criminal Law. New York, Knopf. 6. St. John-Stevas, N. (1961). Life, Death and the Law: Law and Christian Morals in England and the United States. Bloomington, Indiana University Press. 7. Ficarra, B. (1951). Newer Ethical Problems in Medicine and Surgery. Westminster, Md, Newman. 8. Diaconescu, A. (2012). Euthanasia. Contemporary Readings in Law and Social Justice 4(2), 474-483.
146Common cause v. Union of India (2018): SCC Online, SC, 208
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MISERABLE LIFE OF CHILDREN WHO GOT DISABLED DUE TO WAR CRISES Sunil Kumar Mishra
Abstract
War or Arm Conflict have terrible effect on the life of the civilian population. The infrastructure is destroyed leaving mass casualties. Services and system become obsolete and is made inaccessible. Life of common civilian is completely ruined, nowhere to go and nothing to use. No water no electricity and no food making life even more miserable. Arm conflicts or war result in casualties’ pain and injuries. Injuries sustained by many children during armed conflict may also lead to long-term impairments. These children with disabilities are caught in a vicious cycle of violence, social polarization, deteriorating services and deepening poverty. Global estimates suggest there are between 93 million and 150 million children with disabilities under the age of 15. Arm conflict or war in its further exclusion and marginalization of children with disabilities and prevents them from accessing schooling, health and psychosocial support, or a means of escape from conflict. Most of the children especially those became disabled due to war have lost their parents, they have no home, nothing to eat. They are dependent on the mercy of NGO. There is no support from administrative authority. No education, no basic facilities add more vain to their trauma.
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Introduction
The consequences and shoddier effect of war cannot be explained in any words or language. The pain and suffering is far beyond imagination. Today every single newspaper or news channel covers and reports about war, terrorism and anti-terrorism activities being carried out by different nations. A war generally occurs between military powers of two or more nation but the both World Wars impacted not only the military forces but civilian population also. That’s why these wars were called as World War. The effect of World War I are still felt a century after its conclusion. The total number of military and civilian casualties in World War I were about 40 million. World War II was the deadliest military was the most deadly military conflict in the history. An estimated total of 7. To 85 million people perished. Civilian death totalled 50 to 55 million and during the final stage of World war II, the United states detonated two nuclear bomb over Hiroshima and Nagasaki which killed 129000 – 226000 people, most of them were civilians. War has been the single largest factor responsible for causing permanent disablement not only to combatants in the battlefield but also to civilians who are forced to bear the hazards of lethal, chemical and nuclear weapons. Based on figures from a study carried out in 206 communities, including Afghanistan and Cambodia, landmine triggered disability rate among survivors is about 0.9%. About 6% of households in Afghanistan are affected by landmine accidents alone. Surveys of four countries in 1995 found that between 12% & 60% landmine victims had to sell assets to meet their medical bills. Terrorism and anti-terrorism activities have also resulted in large number of casualties, amongst them the most effected are women and children. The number of casualties of Syrian Civil War is more shocking. According to UNICEF reported that over 500 children had been killed by early February 2012. The same scenario exist in India also, it has seen many wars in 1947, 1965, 1971 & 1999.
The United Nation has marked six serious violations of children rights in armed conflict they are; killing and maiming, recruitment and use of children, rape or other sexual violence, abduction, attacks on schools or hospitals, and denial of humanitarian access. The grave violations can result in physical and psychological injuries that can lead to long-term impairments. Two key treaties - the Convention on the Rights of Persons with Disabilities (CRPD) and the Convention on the Rights of the Child (CRC) and its Optional Protocol on the involvement of children in armed conflict - protect the rights of children with disabilities.
Page | 78 Although the rights and principles set forth in these Conventions apply in situations of armed conflict, they are all too often eroded by the violence, stress, hunger, social breakdown and poverty that armed conflict brings. Governments around the world have committed themselves to respect, promote, and fulfil the rights of children with disabilities, including in situations of armed conflict, and progress is being made. Efforts by a broad range of actors to implement the CRPD, CRC and other human rights instruments include the development of standards to address the rights and needs of persons with disabilities in humanitarian crises, and guidance on making humanitarian response, development and peacebuilding more inclusive. Efforts to improve the collection and use of data concerning children and adults with disabilities are also underway. This paper makes clear and argues for much more needs to be done. Investments in disability-inclusive humanitarian action and recovery from crises will pay off, contributing towards a dividend of peace built on greater equality, tolerance and justice.
Definition of Armed Conflict Armed Conflict can be defined as any dispute that involves the use of weapons, violence, or force, within national borders or beyond them, and whether involving state actors or nongovernment entities. The Armed Conflicts can be stated as war both inside and outside the Nation. Examples include international wars, civil wars, armed conflicts with Naxalites and conflicts between other kinds of groups. Impact of war on disabled children.
Millions of children are killed by armed conflict, but three times as many are seriously injured or permanently disabled by it. War has both a direct and an indirect impact on the lives of children and adults. Examples of direct impact include physical injuries from weapons, or psychological problems derived from witnessing terrific events. Examples of indirect impact include the breakdown of health services and lack of food security. Illnesses such as malaria, TB and meningitis are treated late, or not at all, which could also result in disability. During armed conflict, the lives of children with disabilities are affected by declining basic services, increasing need and deepening poverty. Poverty and service breakdown may even contribute to starting this cycle. Some of these children have lost their parents and guardians, they are have no one to look after, and they even have to sell their properties, if they own any to meet their medical expenses. There is stringent policy or
Page | 79 regulation to monitor living condition of these children. Some of the most protracted armed conflicts of recent decades began with government disinvestment in health, education and other social services, often in the name of economic reform. Further, research indicates that children with disabilities are especially affected when health care and other social service infrastructure. As stated, armed conflict further erodes the rights of children with disabilities and their access to services in many ways. Armed conflict or war destroys basic utility facilities like drinking water, sanitation, supply food and daily need commodities. Families may have to pay out of their own pockets for services that were formerly free in times of conflict, inflation may decrease the value of financial assistance accessed by people with disabilities. Rising costs combined with deteriorating security and transport services further reduce access to services. Even when governments try to provide universal access to services, the provision of these services is often fragmented. The destruction of infrastructure can create physical barriers that reduce access to other systems for the children with disability, such as education. For example, attacks on schools can reverse progress on inclusion, pushing previously included children with disabilities into domestic isolation or exploitative work, such as begging. Because of these and related factors, poverty intensifies for everyone, and households and empathy, and disrupt the support networks that allow children to cope with disabilities. Often, children with disabilities acquire new, secondary conditions during conflict and displacement. The impacts of these situations can be significant. For example, if children with spinal cord injuries do not receive quality care, they develop an increased risk of secondary conditions such as pressure sores and urinary tract infections. Disrupted medical service and high price of medical support makes the life of these disabled children more miserable. The use of hazardous chemical, nuclear compounds and biological agents have even more disastrous impact on the life of people for long time. The mothers give birth to children with impairment causing permanent disability. We are still witnessing the effect of the atom bomb dropped over two cities of japan by US. Armed conflicts and war are major factor for malnutrition. Babies subjected to malnourishment during fatal development are at a higher risk of neonatal diseases, and later in life may have chronic health conditions, such as diabetes or metabolic, endocrine and cardiovascular diseases. The children who had become disabled due war are subjected to exploitation, discrimination, sexual harassment, child labour and are forced for begging. They are the soft targets of organ smuggling syndicates. Social Impact; The impact of armed conflicts and war have serious impact on educational and social environment of war disabled children. With destroyed educational institution and
Page | 80 no resource development these children are forced to take the path of terrorism and other anti-social activities like theft, begging etc.
Legal Frame work for disabled children. The Constitution: The Constitution of India applies uniformly to every legal citizen of India, whether they are healthy or disabled. Under the Constitution the disabled have been guaranteed the following fundamental rights: The Constitution secures to the citizens including the disabled, a right of justice, liberty of thought, expression, belief, faith and worship, equality of status and of opportunity and for the promotion of fraternity. Article 15 (I) enjoins on the Government not to discriminate against any citizen of India (including disabled) on the ground of religion, race, caste, sex or place of birth. Article 15 (II) States that no citizen including the disable shall be subjected to any disability, liability, restriction or condition on any of the above grounds in the matter of their access to the properties maintained wholly or partly out of government funds or dedicated to the use of the general public. There shall be equality of opportunity for all citizens including the disable in matters relating to employment or appointment to any office under the State. No person including the disabled irrespective of his belonging can be treated as an untouchable. It would be an offence punishable in accordance with law as provided by Article 17 of the Constitution. Every person including the disabled has his life and liberty guaranteed under Article 21 of the Constitution. There can be no traffic in human beings including the disabled, and beggar and other forms of forced labour is prohibited and the same is made punishable in accordance with law Article 23. Article 24 prohibits employment of children including the disabled below the age of 14 years to work in any factory or mine or to be engaged in any other hazardous employment. Even a private contractor acting for the Government cannot engage children below 14 years of age in such employment. Article 25 guarantees to every citizen the right to freedom of religion. Every disabled person has the freedom of conscience to practice and propagate his religion subject to proper order, morality and health. No disabled person can be compelled to pay any taxes for the promotion and maintenance of any particular religion or religious group. No Disabled person will be deprived of the right to the language, script or culture which he has or to which he belongs. Every disabled person can move the Supreme Court of India to enforce his fundamental rights and the rights to move the Supreme Court is itself guaranteed by Article 32.No disabled person owning property can be deprived of his property except by authority of law though right to property is not a fundamental right. Any unauthorized deprivation of property can be challenged by suit and for relief by way of
Page | 81 damages. Every disabled person on attainment of 18 years of age becomes eligible for inclusion of his name in the general electoral roll for the territorial constituency to which he belongs.
Health laws: Article 47 of the constitution imposes on the Government a primary duty to raise the level of nutrition and standard of living of its people and make improvements in public health - particularly to bring about prohibition of the consumption of intoxicating drinks and drugs which are injurious to one’s health except for medicinal purposes. The health laws of India have many provisions for the disabled.
The person with disabilities (PWD) Act 1995: The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995, had come into enforcement on February 7, 1996. It is a considered as significant step which ensures equal opportunities for the people with disabilities and their full participation in the nation building. This Act provides for both the preventive and promotional aspects of rehabilitation like education, employment and vocational training, reservation, research and manpower development, creation of barrier- free environment, rehabilitation of persons with disability, unemployment allowance for the disabled, special insurance scheme for the disabled employees and establishment of homes for persons with severe disability etc. the main provision of the Act are: Prevention and Early Detection of Disabilities, Education, Employment, Non-Discrimination, Research and Manpower Development, Affirmative Action, Social Security, Grievance Redressal.
The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995: The Rights of PWD Act, 2016 (RPWD Act, 2016) was passed by both the houses of the Parliament. It was notified on December 28, 2016 after receiving the presidential assent. Principles stated to be implemented for empowerment of persons with disabilities are respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons. The Act lays stress on non- discrimination, full and effective participation and inclusion in society, respect for difference and acceptance of disabilities as part of human diversity and humanity, equality of opportunity, accessibility, equality between men and women, respect for the evolving capacities of children with disabilities, and respect for the right of children with disabilities to
Page | 82 preserve their identities. The principle reflects a paradigm shift in thinking about disability from a social welfare concern to a human rights issue.
The rehabilitation Council of India Act, 1992: This Act provides guarantees so as to ensure the good quality of services rendered by various rehabilitation personnel. The people with disability will have the right to be served by trained and qualified rehabilitation professionals whose names are borne on the Register maintained by the Council. They have the guarantee of maintenance of minimum standards of education required for recognition of rehabilitation qualification by universities or institutions in India. They have the guarantee of maintenance of standards of professional conduct and ethics by rehabilitation professionals in order to protect against the penalty of disciplinary action and removal from the Register of the Council and they are also entitled to the regulation of the profession of rehabilitation professionals by a statutory council under the control of the central government and within the bounds prescribed by the statute
Relief for Handicapped: Section 80 DD: Section 80 DD provides for a deduction in respect of the expenditure incurred by an individual or Hindu Undivided Family resident in India on the medical treatment (including nursing) training and rehabilitation etc. of handicapped dependants. For officiating the increased cost of such maintenance, the limit of the deduction has been raised from Rs.12000/- to Rs.20000/-. Section 80 V: A new section 80V has been introduced to ensure that the parent in whose hands income of a permanently disabled minor has been clubbed under Section 64, is allowed to claim a deduction upto Rs.20000/- in terms of Section 80 V. Section 88B: This section provides for an additional rebate from the net tax payable by a resident individual who has attained the age of 65 years. It has been amended to increase the rebate from 10% to 20% in the cases where the gross total income does not exceed Rs.75000/- (as against a limit of Rs.50000/- specified earlier).
Suggestions and recommendations As we have seen above that the constitution of our country vests us with our basic fundamental right, it say all citizen are equal, but have or the administration has done enough to justify it? Despite of different laws and regulation the condition of the disabled children due to war is worse. This legal frame work or its implementation is far from there reach. These children are our valuable resources and therefore there is imperative need for urgent action.
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1. Implementing International Standards: International human rights and humanitarian standards relating to children in situations of armed conflict must be widely implemented and vigorously enforced. Broad awareness of the rights of the child must be promoted and education and training activities developed.
2. Monitoring and Reporting: Violations of Child Rights Children in armed conflict must be treated as a distinct and priority concern in all human rights, humanitarian and development activities. Effective mechanisms for monitoring and reporting violations of children’s rights must be established.
3. Promoting Physical and Psychological Recovery and Social Reintegration: To ensure respect for children’s fundamental rights, measures to promote their health, nutrition, psychosocial well-being and education must be the pillars of all humanitarian assistance policy and programs.
4. Increasing Commitment for Refugee and Internally Displaced Children: The care and protection of refugee and internally displaced children requires increased international commitment and cooperation, particularly in relation to family reunification, the equitable delivery of humanitarian assistance and children’s right to education. In each conflict situation, UNICEF is urged to provide leadership to ensure assistance and protection of internally displaced children.
5. Demobilising Child Soldiers: Governments and all armed groups should prevent the recruitment of children under the age of 18, immediately demobilise all children in armed forces, and incorporate their needs into peacekeeping, peace agreements and demobilisation programmes.
6. Ending the Scourge of Landmines: States are urged to support a comprehensive international treaty to ban, as soon as possible, on the use, production, trade and stockpiling of anti-personnel mines. An integrated programme of humanitarian mine clearance, gender and age appropriate mine awareness.
Page | 84 7. Preventing Gender-based Violence and Sexual Exploitation: Violations of the rights of girls and women in armed conflicts, including murder, rape, sexual exploitation and forced pregnancy, must be prosecuted, and appropriate legal and rehabilitative remedies made available.
8. Protecting Children from Sanctions: Whenever sanctions are imposed, their impact on children should be assessed and monitored. Humanitarian exemptions should be child- focused and formulated with clear application guidelines.
9. Special Representative: A Special Representative on the Impact of Armed Conflict on Children should be named to keep the issues of children and armed conflict high on international human rights, humanitarian, peace, security and development agendas, and to ensure a follow-up to the Report of the Expert of the Secretary-General on the Impact of Armed Conflict on Children.
10. Imperative to end War: We give emphasis and rail against approaching HIV/AIDS, tuberculosis, or malaria. On the other hand, like war, may be treated with the assumption that it will always be with us, and is a fact of life. These assumptions should be vigorously challenged. There are many current cultures without war. In the European Union, social institutions for dealing with conflict have evolved to a point where war is unthinkable between member states. There are clear alternatives to war in dealing with intra- and inter- state conflicts such as judicial process: The World Court resolves many interstate conflicts. Democratic functioning is designed to resolve intra-state conflicts. Good design of constitutions is another factor in this function. Dialogue: UN conflict management capacities already quietly resolve many serious conflicts. Better resourcing could enhance these capacities. Other agencies also act in this mode. Nonviolent struggle is frequently successful in deposing dictators or dysfunctional regimes. Usually this is done without good organization or training. Such efforts could be even more successful with these resources added.
Conclusion The Arm Conflicts or war hampers the economic and social growth of nation, state and region. It is an act of aggression between nation, regions, forces or communities which uses
Page | 85 weapons, arms & ammunitions, harmful chemical, Biological agents and Nuclear weapons. We have seen and read daily conflicts which occurs in different part of India. The counter terrorism activities in Jammu and Kashmir, or conflicts between security forces and Naxalites in North East States of Assam, Manipur, Sikkim.Anti- Naxalites operation in Chhattisgarh, Jharkhand, Bihar, Orissa Maharashtra, Kerala and Tamil Nadu. Armed conflict or war is not a solution to any issue. Its ultimate result is sorrow and pain. Area is ruined, families are destroyed, women becomes widow, children are left helpless, no body to look after them. Casualties and disabled are left behind. Basic facilities like health and sanitation, supply of food and drinking water, education all gets disrupted. More painful is the condition of the children who becomes disabled these armed conflict or war. Children with disabilities are more at risk of experiencing psychosocial problems Despite this sad fact, Children with disabilities are often not included in psychosocial programmes because of organisational negligence, negative attitudes and stigma. Children and adolescents exposed to armed conflict are at high risk of developing mental health problems. To date, a range of psychosocial approaches and clinical/psychiatric interventions has been used to address mental health needs in these groups. In the midst of war, images of children and families caught in the crossfire disturb and motivate action. However, as conflicts subside and media attention turns to the latest breaking emergency, little attention is paid to the longer-term mental health and psychosocial sequelae plaguing conflict-affected children and families. In general, mental health receives limited attention from policymakers and funding agencies, and it is rare for countries under conflict to emerge with a post-conflict development agenda that includes robust attention to mental health services. Despite of various laws, act and regulation on justice has been done with the children with disabilities, especially those war disabled children. Each and every children is an asset and they are future of our nation. Under UN convention India is committed to implement policies and law to safeguard the rights of disabled children. It is committed to Harmonize national laws and policies with international instruments protecting the rights of children with disabilities. India as responsible nation has to ratify the CRPD, the Optional Protocol to the CRC on the involvement of children in armed conflict and other relevant instruments. Merely drafting the laws will not do any magic unless it is properly and appropriately implemented. The appropriate government should ensure the implantation and should get feedback. Firstly all measures should be taken to maintain peace and harmony and if any arm conflicts occurs then secondly it should ensure speedy restoration basic and daily requirement commodities. The government should carry out study and survey of the war effected area and should make sure that the area is sanitised
Page | 86 and it should ensure that the area is safe, the environment is free from harmful chemical and radiations and it does not have cascading effect on coming generation of that area.
Involve children with disabilities. Humanitarian personnel, peacekeepers and other humanitarian actors must ensure that girls and boys with disabilities and their families participate throughout humanitarian response – from planning to implementation, data collection, monitoring and evaluation, and in recovery and peacebuilding. Provide appropriate support and accommodation such as sign language interpretation and transport assistance. Enhance the capacities and knowledge of personnel in peace operations on the rights and needs of persons with disabilities in humanitarian contexts. Add specific modules to existing pre-deployment and special training materials on child protection for all personnel in peace operations, including civilian, military and police, to enable them to understand the perspectives, needs and strengths of children with disabilities in situations of crisis. Understand the needs and experiences of children with disabilities in humanitarian action. Ensure that humanitarian needs assessments, response plans, and reporting identify needs and barriers faced by children with disabilities. Document violations against the rights of children with disabilities, including discrimination and denial of humanitarian assistance. Reflect violations against children with disabilities and incidents of injuries to children resulting in disability in the documentation of grave violations of child rights through the Monitoring and Reporting Mechanism. Action plans to prevent and respond to grave violations against children should address the needs of conflict affected children with disabilities.
Review rules of engagement and standard operating procedures on protection of civilians to ensure they adequately cover children. Member States should proactively review the rules of engagement and standard operating procedures of their security forces on protection of civilians to ensure they provide sufficient protection for children, including children with disabilities, and are established prior to the onset of conflict. These efforts can be supported by UN agencies through Security Sector Reform and other technical support processes. We as the people of this nation should understand that these children deserve that respect, the dignity and autonomy on an equal basis with all normal children and adults. Children and adults with disabilities have a key role to play in resolving conflict and in post-conflict reconstruction. Therefore, the international peace and security bodies needs to accommodate the participation of children and adults with war disabled in post conflict restoration. Children disabled because of war and armed conflict can play a significant role in mechanisms such as
Page | 87 transitional justice to address the human rights violations. The appropriate government and local bodies must give priority for inclusion of these children in planning and decision- making in the response to armed conflict, and later in peacebuilding. Protecting the safety and rights of war disabled children will yield positive results for the nation and world too. It will benefit society as a whole. In that sense, it is an investment in sustainable peace.
References Richman, N. (1995). Violence and disabled children. In: P. Zinkin & H. McConachie (1995). Disabled Children and developing countries. London, MacKeith Press. Sullivan, P.M. & Knutson, J. F. (2000).Maltreatment and Disabilities: A Population Based Epidemiological Study. Child Abuse and Neglect, 24, 1257-1273. United Nations (1989). United Nations Convention on the Rights of Children. Geneva, UN. Available Online: http://www2.ohchr.org/english/law/ pdf/crc.pdf [Accessed 13 August 2009]. United Nations (2006). Impact of armed conflict on children. The Machel Study. Available online: http://daccessdds.un.org/doc/UNDOC/GEN/ N96/219/55/PDF/N9621955.pdf? OpenElement [Accessed 30 July 2009). • UNICEF (2005).Violence against Disabled Children,UN Secretary General’s Report on Violence against Children. Thematic Group on Violence against Disabled Children. Available online: http:// www.unicef.org/videoaudio/PDFs/UNICEF_Violence_Against_Disabled_Children_R eport_ Distributed_Version.pdf [Accessed16December2009]. Richman, N. (1995). Violence and disabled children. In: P. Zinkin & H. McConachie (1995). Disabled Children and developing countries.London,MacKeith Press Brigitte Rohwerder, Intellectual disabilities, violent conflict and humanitarian assistance: advocacy of the forgotten, in Disability & Society, Vol. 28, No. 6, 2013; Human Rights Watch, Central African Republic: persons with disabilities left behind, New York, 2015; Lynne Jones et al., Severe mental disorders in complex emergencies, in The Lancet, Vol. 374, 2009. • Disability Monitor Initiative – Middle East, Access to Social Services for Persons with Disabilities in the Middle East: multi-stakeholder reflections for policy reform, 2009; Amnesty International, Agonizing choices: Syrian refugees in need of health care in Lebanon, London, 2014; Women’s Refugee Commission, Disability among Refugees and Conflict-Affected Populations, 2013. Nora E. Groce et al., Disability and Poverty: the need for a more nuanced understanding of implications for development policy and practice, Third World Quarterly, Vol. 32, No. 8, 2011; Jeanine Braithwaite and Daniel Mont, Disability and Poverty: A Survey of World Bank Poverty Assessments and Implications HDNSP/World Bank, Washington DC, 2008. Handicap International (now called Humanity & Inclusion), Christian Blind Mission (CBM), and HelpAge International, Humanitarian inclusion standards for older
Page | 88 people and people with disabilities, 2018, available at http://www.helpage.org/newsroom/latestnews/new-humanitarian-guidelines- launchedfor-ageingand-disability-inclusion/ (accessed 29 November 2018). Coalition to stop the use of child soldiers. Child soldiers global report 2004. Available from: http://www.eldis.org/static/DOC16469.htm, Accessed: November 10, 2006.
Page | 89 AUTHOR: RISHABH AGRAWAL
ABSTRACT
Section 377 of IPC refers to “unnatural offences”. This section came into force in 1861 during the British Rule in India who criminalized this sexual activity “against the order of nature”. The issue of Section 377 was first raised by NGO, Naaz Foundation and AIDS Bedhbhav Virodh Andolan before Delhi High Court in 2001. Both the petitions were dismissed by the court. Eight years later the same court decriminalized the consensual sexual activity between the same gender as illegal. However, in 2013 Supreme Court overturned the judgement given by Delhi High Court. In 2017 the Supreme Court upheld the Right to Privacy as a fundamental right under the Constitution of India. The Supreme Court further said that LGBT population are real and is founded on the constitutional core. In January 2018 a 3-member bench of Supreme Court heard a petition filed by 5 people to revisit the case of Naaz Foundation judgement. The case was referred to larger bench. In its historical judgement on 6th September 2018 Supreme Court stated that consensual gay sex is not a crime saying it is a natural oriented sex and people do not have control over it.
INTRODUCTION
“Why is that, as a culture, we are more comfortable seeing two men holding guns than holding hands”
The constitution of India gives rights to every citizen and it protects and recognizes the right of every citizen of this country but in one aspect it does not provide the right to a certain section of the country that is ‘homosexual'. Homosexuality simply means a romantic attraction, sexual attraction or sexual behavior between a member of the same sex or gender. Basically, these are the person who has their sexual orientation toward the same sex, like Man Sex with Man (MSM), called Gay similar the case with girls called Lesbian. The society at large, construct heterosexuality as a norm and homosexuality as a sin or unusual. Section 377 of IPC violates the right of these LGBT group by criminalizing what they considered the expression of their individuality and infringing of their fundamental right that provided in the Indian Constitution under Article 19 and 21. In England if we see the primitive era, there was also criminalizing of the sodomy law but as the society evolve English law was reformed by sexual offense act, 1967 which decriminalized homosexuality and act of sodomy between consenting adults above the age of 21.
Page | 90 HISTORY
377. "Unnatural offenses- Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and also shall be liable to fine. Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section147.
Section 377 of the Indian Penal Code was authored by Lord Macaulay, the President of the Indian Law Commission, in 1860, as part of Britain's efforts to impose Victorian values on its biggest colony (similar laws were imposed on most of its colonies, including the United States)
As we saw in many countries it is against their law but as time passes many western countries abolish the sodomy law but it is not removed in the Asia and Africa and India is one of the countries in which the LGBT community still does not have the right and our neighbor country Nepal also decriminalize the Homosexuality. Basically, the Homosexual is the order of nature and it is not against the society and by criminalizing this we interfere in the private life of the individual. If I talk about the history, in England homosexual were considered against the society and totally a sin, Sodomy law basically govern the homosexual if any person who is found having indulged with sex with man then that person should be burnt alive, so we see how harsh the punishment was but as we know as time passes society change and law also because law cannot be static and from this point, the Buggery Act of 1533 was abolished in 1861 in England and Wales.
Similar the case with India because we have our Indian Penal Code of 1860, and the person who drafted our criminal law thinks that, Homosexual were against society.
The turning point for Homosexual in India is started with the case of Naz Foundation, in which Justice AP Shah decriminalizes the Homosexuality and said it is the order of nature and this individual or groups are also the part of our country. We have in our constitution Article 21 which provides Right to life and Personal Liberty and for me these groups have also the right to life and another Article 14 which provides Equality before Law, which starts with- The State shall not deny to any person equality before law, so by this line we think that if our constitution maker does not make any discrimination between the people so why we
147The Indian Penal Code, 1860. S. 377.
Page | 91 have in the IPC section 377, which violates the right of the particular group or individual. Our Constitution is the Law of the Land or Grundnorm but we cannot provide equality to those people. The decision was only for some time and later on in the case of Suresh Kumar Koushal the honorable Supreme Court criminalizes the homosexuality.
A lot of studies has been taken up with regard to this, which provides that homosexuals orientation are not psychologically impaired in judgment, stability, and vocational capacity. Homosexual is normal as ‘you' and ‘mine’. “Like Heterosexuality, Homosexuality is an orientation; Society is changing.”148 What is not changing is the social and legal mindset in India.
Homosexuality: Whether it is a Right
Homosexuality is right because our constitution provides so by Article 14, 19, 21, 25 and the important could be 21 and 25 and it also become powerful because now we have the right to privacy as our fundamental right, Article 25 provides right to profess of the religion and 21 provides Every citizen right to life and liberty now we can understand by the term "Every" it is so wide expression that it includes every type of human being no matter whether the person is heterosexual or homosexual, in many of the cases Supreme court provides right to life for animal also, so that no one can cause harm to them and many cases authorities made liable by heavy compensation so we now can find that, if we are so concerned with the animal so what is the problem if we think about the homosexual. The society is basically a problem because they do not allow the change.
Basically the problem lies, in Indian Society we only talk about Sex in the name of Procreation and not otherwise but it is also pleasurable to the person, we did not consider the pleasure of the individual similar the case with homosexual they want to live alone, it is their want of expression but the society did not consider it. We live in that society which is hypocrite we have the monuments in many places where the sexual architecture is present and which tells us about the primitive era and there were so many positions also described so now we can relate that, if these kind of thing are prevalent in earlier stage so what is the problem, it is only the society which did not accept.
148Jaswal, Paramjit S, G. I. S Sandhu, and Honey Kumar. Contemporary Social Issues In Indian Society. p. 80 New Delhi: Windshield Press, 2017.
Page | 92 Basically, everyone has the right to live with dignity and with autonomy in the society, in case of Egan v. Canada149, L’Heureux-Dube, J described dignity as it is clear that the constitutional protection of dignity requires us to acknowledge the value and worth of all individuals as members of our society. It recognizes a person as a free being who develops his or her body and mind as he or she sees fit. At the root of dignity is the autonomy of the private will and a person's freedom of choice and of action. The lordship made a very good opinion because we know we are in a democratic society and constitution provides a fundamental right to everyone, so why still some class does not get their life with dignity. The concept was beautifully explained by Justice P.N. Bhagwati in Francis Coralie Mullia v. Administrator150, Union Territory of Delhi and others, "……we think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing, and shelter, and facilities for reading, writing and expressing oneself in diverseforms, freely moving about and mixing with fellow human beings...... Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live and it would have to be in accordance with the reasonable, fair and just procedure established by law which stands the test of other fundamental rights". From this, we can conclude that the person who want their right of expression must be fulfilled and it passes the fundamental test but because of some politician and orthodox society, they cannot express their want of expression that is natural, not artificial and somehow we say the order of nature. In India everyone has the right to practice and profess the religion, the word religion itself is not defined in the constitution, Supreme Court in, The Commissioner, Hindu Religious Endowments, Madras v. Lakshmindra Thirtha Swamiar of Sri Shirur Mutt151, ‘Religion is a matter of faith of individual or communities and it is not theistic. In our country we allow every religion and Buddhism and Jainism believe in spirituality and not in God so also the case with Homosexual they considered ‘Sex and Homosexuality as the Joy'. In present our constitution gives the basic fundamental right to every person even though it is a minority, there is a huge violation of their rights, they are subject to abuse, harassment by general public even the public institution also harass them at large. The basic problem is they cannot express their feeling in society, if they express they are subject to harassment, in many cases a person become the grandfather and at that point they still love the person of same-sex the reason is societal pressure that led also a breakdown of families. The change began when the Supreme Court said Right to Privacy is the fundamental right.
Why does it Matter
The point I discuss why it is matter first discuss how it came as one of the prominent issues for present time, Delhi High Court in Naz Foundation basically decriminalize section 377 of the IPC and the lawyer who argued in this favor said the provision made the LGBT
149Egan v. Canada, (1995) 29 CRR (2nd) 79. 150 Francis Coralie Mullia v. Administrator, Union Territory of Delhi, AIR 1981 SC 746. 151 The Commissioner, Hindu Religious Endowments, Madras v. Lakshmindra Thirtha Swamiar of Sri Shirur Mutt,AIR 1954 SC 282.
Page | 93 community to the status of the ‘Unconvicted Felon’152. The hope of the community basically arise but it gets overturned by the Supreme Court and the section will prevail but the change start when the Justice K.S. Radhakrishnan in one of its decision said Transgender is the Third Gender so because of that now they have the multiple rights like adoption, marriage, etc, basically we recognize them as the gender, the word in itself is very wide it is given by the society here we have no relation with Sex. And the same situation arises again by the nine- judge bench decision regard to privacy in which they said Right to Privacy is the fundamental right. Justice D.Y. Chandrachud Observed by saying that “poses a grave danger to the unhindered fulfillment of one’s sexual orientation, as an element of privacy and dignity”153 .
Section 377 criminalizes the unnatural sex which is the violation of the sexual minority community they are not asking for their recognition as sexual minority but asking for to choose one's partner for life that is inherent in the human body that they even cannot change, it is one sexual preference over other so why the law criminalize this, they argue that one’s sexual preference and sexual autonomy of the individual himself is one of the cornerstones of human dignity. So basically the aforementioned judgment provides that in future the court is going to accept the petition with regard to this.
Is Morality is the Ground of Restriction
The point has a different opinion but morality cannot be the ground of restriction basically in this country we disallow the person natural right or any right that any citizen have in this country on the ground of morality or religion, these are one of so-called ground that we cannot give the citizen the fundamental right that they have by the constitution. The word homosexuality is so demining in this society that people cannot in public discussion about the issues we have the orthodox mentality on one side we want our country the developing nation and on another hand we could not provide our citizen the right to equality, the problem arose where there was a lack of support from the family, government from the police and the public institution. In the name of morality we did not allow the question arose as we are Indians and particularly we are the secular country but from one perspective we see ourselves as the Hindu Country and we follow the custom and rituals from that was followed by our ancestor but the opposite arises when in Bhagwat Geeta the pious books of the Hindu in which it was mentioned that “what seems unnatural is natural”, we see Hindu as a religion which is not static and which allow to change as the society grows and in past we see Hinduism is one of 152 Rajagopal, K. (2018). What is Section 377, and why does it matter? 153The Indian Penal Code, 1860. S. 377.
Page | 94 the tolerant religion, so by this we say that religion and morality never bar the person it is the society that does not allow. In Hinduism the focus is on the soul, not the body, the body is for the limited time period, homosexuality is not the personal choice that now I want to change my sexuality to different sex it is inherent in the nature of the individual and it prevails from the centuries. In this country, it is always looked down by the society so because of that the person who belongs to the minority group kept hidden secret of their life and follow the rituals of the society that was imposed upon them.
The Indian Constitution is one of the best constitutions in the world and it supports the rights and diversity of every individual, so on ground of the sexual orientation of the people we cannot debar their rights and it is totally against the constitutional morality thus the public morality is no matter for us, the morality that we to see is the Constitutional morality and it is allowed under Article 21 of the Constitution, thus morality should be constitutional, not public because at the end of the day Law prevails and the constitution is the Grund norm of this country.
Views of Political Parties/Public in Support of Section 377
Jaggi Vasudev also popularly known as Sadguru said that probably till now, largely in the social space, in the media space, in the social media space everybody is pitching this topic either for or against. When we say sexuality, it is something nature has put in us because there is something called as a perpetuation of the race or the species otherwise it won't happen. We as a human being are just using the pleasure part of it. This is sexuality right now largely in the world. But essentially this pleasure also comes into the sexuality process because if there was no pleasure to it maybe we wouldn't be born. So, there is no denying it or putting it under the carpet, that's not the thing. But somebody has a certain kind of sexual preference which has got nothing to do with reproductive process as such. It is their personal preference because every individual has the right to do whatever they want to do with their body because it's their body. But if it is something harmful, you are going to cut your nose off or you are going to cut something else off then maybe we will try to prevent you. But you are not causing any harm to yourself in that way, then it’s your business if you do something in your private. Right now, the Supreme Court decision is what a person does in their private space is nobody’s business.
J. Sai Deepak, Advocate, Supreme Court said that it’s a bit surprising that it is taken on such a long to arrive at this decision. It also actually calls into question our own wisdom in
Page | 95 receiving and accepting everything which was imposed upon us by the colonial rulers as sacrosanct. So not only this law but several other legislations perhaps need visitation. A start has been made and it’s surprising that the fundamental tenor of the Constitution which was set on 26th January 1950 is being applied to a Victorian provision for the very first time in this manner in 2018. The fact that the provision has been read down and so far as sex between homosexual adults is concerned. The Doctrine of Progressive Realization of Rights that the Chief Justice has spoken about, it would be interesting to see how this doctrine plays itself out in other cases. If you look at the final conclusions of Justice Indu Malhotra and others also there are two findings or two directions with respect to concluded prosecutions and pending matters. Where there are concluded prosecutions and people who have been prosecuted under Section 377, this is a serious problem that it has taken such a long time for this judgment to come.
Views of Political Parties/Public in Opposition of Section 377
Subramanian Swamy was not in favor of the Supreme Court's judgement. According to him, while this judgement follows the 2013 judgement which was the opposite and so they have overruled it, but they have not struck down the part which makes it a crime to have sex with animals where they draw the line on fundamental rights. SC said that what you do in your privacy and complete consent is your own business. The issue is whether we should treat homosexuality as an alternative mode of behavior or as normalcy. I have always maintained that it's a genetic flaw and it's like having six fingers on your hand. It's not something that should put obstructions in your being a normal social human being. Supreme Court may say homosexuality as natural then why did they draw the line on the animals. Somewhere we draw lines, but they have drawn the line a little further than all of us would do. Supreme Court cannot make it as something which is an alternative to your normal sexual behavior. Discriminating somebody because he's a homosexual is wrong. We cannot say that this is something which we should treat as normal behavior.
The Judicial Approach
Page | 96 The judgement in the case of Navtej Singh Johar v. Union of India154 by the Constitutional Bench comprising of 5 judges was united as declaring the provision unconstitutional. However, the approach and reasoning of every judge varied with each other.
Justice Dipak Mishra has focused his decision on two facets which comprise freedom to self- determine one's identity and freedom to choose a partner. What Article 14 offers is that "all like should be treated alike". In other words, it infers equal treatment for all equals. Though the legislature is fully authorized to enact laws pertaining to a particular class, as in the case at hand in which Section 377 applies to citizens who indulge in carnal intercourse, yet the classification including the one made under Section 377 IPC, has to satisfy the twin conditions to the outcome that the classification must be founded on an intelligible differentia and the said differentia must have a rational nexus with the object sought to be attained by the provision, that is, Section 377.
Justice Rohinton Fali Nariman in his own ruling told about the importance of the right to autonomy and privacy in intimate matters. To support his verdict, he cited the case of National Legal Services Authority v. Union of India155 and K.S. Puttaswamy v. Union of India156. Section 377, in punishing consensual gay sex, is clearly arbitrary. Given current psychiatric studies and legislation which identifies that gay persons and transgenders are not persons suffering from mental disorder and cannot, therefore, be punished, the section must be held to be a provision which is unpredictable and unreasonable. Also, roping in such persons with sentences going up to life imprisonment is evidently excessive and disproportionate, because of which, when applied to such persons, Article 14 and 21 of the Constitution would clearly be violated. The object sought to be attained by the provision, namely, to impose Victorian mores upon the people of India, would be out of jingle with the march of constitutional events that have since taken place, rendering the said object itself biased when it seeks to single out same-sex couples and transgenders for punishment.
Justice Chandrachud highlighted his method on the theory of indirect discrimination which talks about a law that is similar for everyone but has an unfair outcome on people who share a quality. Lesbians, gays, bisexuals, and transgenders have a constitutional right to equivalent citizenship in all its indices. Sexual orientation is familiar and protected by the Constitution. Section 377 of the Penal Code is unconstitutional in so far as it punishes a consensual
154Navtej Singh Johar v. Union of India, (2018) 10 SCC 1. 155National Legal Services Authority v. Union of India, (2014) 5 SCC 438. 156K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
Page | 97 relationship between adults of the identical gender. The constitutional morals of liberty and dignity can receive nothing less.
Justice Indu Malhotra specified that penalty based on sexual orientation will violate a person’s right to equality, right to freedom of expression, right to life and similar rights evolving from that of privacy. Section 377 in so far as it criminalizes consensual sexual acts between adults in private, is not built on any comprehensive or balanced principle since the foundation of criminalization is the "sexual orientation" of a person, over which one has "slight or no choice". Further, the phrase "carnal intercourse against the order of nature" in Section 377 as a decisive principle in a penal provision, is too open-ended, giving way to the possibility for misuse against members of the LGBT community. Thus, apart from not sustaining the twin-test under article 14, Section 377 is also clearly arbitrary, and hence violative of Article 14 of the Constitution.
The judgement delivered by the Supreme Court is also greeted to be a vision declaration. The method accepted by the Court in creating the Constitution as an ever-developing document continuing with time by taking into the public realities is commendable. The Court has in this method stressed the requirement for a Constitution to adapt, progress and transform. The Court has also focused on the principle of non-retrogression which realizes the idea that a
157 State should not allow a reduction in the status of rights which it has attained.
Ramifications under Section 377
The asserting of the overseas law as being unconstitutional to reverberate with the comprehensive nature of our Constitution, multiple social fabric and values the country performance. The objection of such a law which served a section of the society as superior, showcase the community which trusts in more completeness and is powerfully different to the law of force. The result also highlights the Constitutional values of fraternity, equality, liberty being trained at its peak form.
But just the result is insufficient to eliminate the ethical and communal disgrace close to recognizing oneself as a homosexual and freedom of autonomy. A lot needs to be completed at the individual front to meet the inferences of the decision. The hard work is not only restricted to the communal front but also contains enlistment of political parties to provide additional phases confirming equivalent action and giving them a chance for an honorable 157 Shilpa Jain & Vishwajeet Singh Shekhawat, Section 377: Reparation and the Road Ahead, EBC Pvt. Ltd., Nov. 2018, at 79, 82.
Page | 98 life. A postponement of the judgement includes a law to recognize the same inheritance, legal wills, same-sex marriage, meaning of spouse among many others. The fight for equality and privileges has just started. But the march on as a country not kneeling to the opinions of the majority outlines the authority of the significant verdict evolving the rights of the residents.
Conclusion
"Take me as I am. I am what I am", with this quote Supreme Court decriminalized long term legal battle on Section 377 of IPC. This article promotes some important questions about homosexual society, which have had a harsh adverse influence of homosexuals in India. The judgement given by the Supreme Court in the Navtej Singh Johar158 case has a significant value in the eyes of the LGBT Community. The court has preserved the fundamental rights of this community such as the right to equality under Article 14, right to freedom under Article 19 and right to life under Article 21. Now the status of this community shall be the same as that of the common man. However, due to political reasons, the verdict of the court was also criticized by various political leaders. Indu Malhotra, one of the five judges in his closing statement quoted that ‘History owes an apology to the LGBT Community”.
It is not easy to determine whether what impact does this judgement of the Supreme Court holds in the future. But it will definitely give some hope to this community to choose the partner of their choice and will not have to face any consequences which were very common in the past.
Effects of Mistake as to law according to the Indian Contract Act, 1872
158Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
Page | 99 159 160 By- Milind Rajratnam & Mitali Kshatriya
ABSTRACT
One important factor of a valid contract is free consent. Both the parties to the contract must enter the contract willingly and under no pressure. There are factors which impair the free consent of either party. One such factor is “mistake”, which includes a mistake of law and mistake of fact.
A mistake is an erroneous belief that is innocent in nature. It leads to a misunderstanding between the two parties. Now when talking about a mistake, the law identifies two types of mistakes, namely; i. Mistake of Law-This mistake may relate to the mistake of the Indian laws, or it can be a mistake of foreign laws. If the mistake is regarding Indian laws, the rule is that the ignorance of the law is not a good enough excuse. This means either party cannot simply claim it was unaware of the law. The Contract Act says that no party shall be allowed to claim any relief on the grounds of ignorance of Indian law. This will also include a wrong interpretation of any legal provisions.
However, ignorance of a foreign law is not given a similar treatment. Ignorance of the foreign law is given some leeway, the parties are not expected to know foreign legal provisions and their meaning. So a mistake of foreign law is in fact treated as a mistake of fact under the Indian Contract Act. ii. Mistake of Fact - Then there is the other type of mistake, a mistake of fact. This is when both the parties misunderstand each other leaving them at a crossroads. Such a mistake can be because of an error in understanding, or ignorance or omission etc. But a mistake is never intentional, it is an innocent overlooking. These mistakes can either be unilateral or bilateral.
INTRODUCTION 1591st Year student from Dr. Ram Manohar Lohiya National Law University, Lucknow. 1601stYear student from Dr. Ram Manohar Lohiya National Law University, Lucknow.
Page | 100 Section 21 of The Indian Contract Act, 1872 deals with the effect of mistake as to law. According to Section 21, a contract is not voidable because it was caused by a mistake as to any law in force in India; but a mistake as to a law not in force in India has the same effect as a mistake of fact.
The section provides that a mistake of law in force in India does not make a contract voidable, but a mistake of foreign law is to be treated as a mistake of fact.
The general language of this section represents the current doctrine at the time when the Contract Act was made, namely, that relief is not given against mistake of law. A person cannot go back upon what he has deliberately done or excuse himself from liability of wrongful act or offence, merely because he alleges that he acted under a misapprehension of law. It is his business to know, by taking professional advice or otherwise, so much law as concerns him for the matter he is transacting. No other general rule is possible, without offering enormous temptations to fraud. But this doctrine in question is not without rather large qualifications. A mistake of law does not universally or generally invalidate transactions in which it occurs.
WHAT IS MISTAKE?
According to Sir John Salmond, mistake is ‘error in consensu’ or ‘it is an erroneous belief concerning something’. Thus, mistake is mainly error in consent. Mistake in legal sense bears a more restricted meaning than in popular parlance. Mistake, which vitiates a contract, is sometimes referred to as “operative mistake”.
At common law mistake of expression, want of mutuality and failure of expression would seem to stand apart from the law of mistake. The first concerns the realm of interpretation and not the formation of contract. The second is altogether a negative of agreement and the third appertains to construction. Where a contract is vitiated by mistake, the contract is void because there is no real consensus between the parties.
But if the contract is vitiated by misrepresentation, fraud, duress or coercion then it is only voidable because there is only an error in the motive or the reason which induced one party to give his consent, i.e., error in causa or the inducing cause.
Though law allows only a restricted scope to mistake, common law and equity have differed in their attitudes as to this effect. At common law, in case where mistake operates the effect is to render the agreement or transaction void ab initio. Since no right can be derived from a complete nullity its reaction on third parties is harsh. Equity may however grant relief in such cases without declaring the transaction a nullity so as to afford protection to innocent third
Page | 101 parties who have become involved. Equity may relieve also one of the parties from the effect of mistake. This may be by way of
• Refusal of order of specific performance or
Rectification of a written agreement or
Rescission of the agreement.
Mistake can be caused at many stages of the contract and can be related to many issues concerned to it.
Mistake may be classified into 3 types;
(1) Common Mistake- Where both parties make the same mistake. Each knows the intention of the other and accepts it, but each is mistaken about some underlying and fundamental fact. They may enter into a contract with respect to some object which may have been destroyed and ceased to exist, unknown to both.
(2) Mutual Mistake- Where parties misunderstand each other and are at cross- purposes. Here, the mistake is entertained by both parties with regard to the subject-matter of the sale or purchase.
(3) Unilateral Mistake- Only one of the parties misunderstanding each other and there is no real correspondence of offer and acceptance. The parties are really not consensus ad idemand there is no agreement at all. Mistake of law Ignorance of law does not affect agreements, nor excuse from the legal consequences of particular acts. “ The legal presumption is that every man of reasonable understanding knows the law, when he knows the facts ; and this presumption, through arbitrary and false, is found upon reasons of public policy ; for, inasmuch as a thorough knowledge of the principles of law presupposes the studious labour of a life, and the application of that knowledge to many complicated questions of fact can only result in an opinion, in which there is no strict certainty, and from which other equally exercised and accomplished minds may differ, without some arbitrary rule, imposing upon each man the duty of well considering and understanding the consequences of his own acts and contract, there would be no limit to the excuse of ignorance, and no security in any agreement. Besides, the
Page | 102 opposite rule would encourage ignorance, and rob knowledge and sagacity of its fair fruits; for if a party could claim to set aside his contract, on the ground that he was not acquainted with legal rules governing it, it would be safer to be ignorant than to be wise. The law presumes, therefore, that every man, who makes a contract, makes it advisedly, and with a knowledge of its legal incidences and consequences ; and although this rule, like all arbitrary rules, in some individual cases, works injury and injustice and cuts the knot, which cannot be united by law, it nevertheless serves to give stability and certainty to the general transactions of commerce which would otherwise be fluctuating and insecure. Whatever mistakes, therefore, a man may make in the law relating to his contracts, they will be binding, unless fraud or imposition be practiced upon him.161 It is a well-known maxim that ignorance of law will not furnish an excuse for any person, either for or a breach or for and omission of duty ; “ignorantia legis neminim excusat” ; and this maxim is as much respected in equity as in law. It probably belongs to some of the earliest rudiments of English Jurisprudence; and is certainly so old as to have been long laid up among its settled elements. The probable ground for the maxim is that suggested by Lord Ellenborough, that otherwise there no saying to what extent the excuse of ignorance might not be carried. Indeed, one of the remarkable tendencies of English Common Law upon all subjects of a general nature is, to aim at practical good, rather than theoretical perfection; and to seek less to administer justice in all possible cases than to furnish rules which shall secure it in the common course of human business. If, upon the mere ground of ignorance of the law, men were admitted to overhaul or extinguish their most solemn contracts, and especially those which have been executed by a complete performance, there would be much embarrassing litigation in all judicial tribunals and no small danger of injustice, from the nature and difficulty of the proper proofs. The presumption is that every person is acquainted with his own rights, provided he has had a reasonable opportunity to know them. And nothing can be more liable to abuse than to permit a person to reclaim his property upon the mere pretence, that at the time of parting with it, he was ignorant of the law acting on his title. Difference between mistake of fact and mistake of law The ground of the distinction between mistake or ignorance of law and mistake or ignorance of fact is stated by Mr. Justice Story to be, “That as every man is presumed to know the law, and to set upon the rights which it confers when he knows the facts, it is a culpable negligence in him to do an act or make a contract, and then set up his ignorance as a defense. But no person can be presumed to be acquainted with all matters of fact, nor is it possible by any degree of diligence to acquire that knowledge, and, therefore, an ignorance of facts does not import culpable negligence.” Another reason would seem to be, that public policy and the necessities of the case do not demand the same arbitrary rule in respect to mistake of fact is far more susceptible of proof and disproof by the rules, of law than mistakes of law, - and also since such mistake of fact as avoid a contract, are more inherent to it, and more necessarily productive of injury, than mistakes as to rules of law, which an
161 Story’s Contract, 4th Ed., p. 495.
Page | 103 extraneous to the contract. The law, therefore, wisely avoids establishing an arbitrary rule, 162 where it is not absolutely necessary.
Mistake as to Foreign Law As regards the second clause of the section, Indian jurisprudence has adopted the rule of the common law that foreign law is a matter of fact, and must be proved or admitted as such, though the strictness of the rule about proof has been somewhat relaxed by The Indian Evidence Act 1872. Accordingly, the statement of finding of any foreign law on which the Court proceeds in a given case is no more binding on the Court in any future case, even apart from the possibility of alteration in the law in question, than any other determination or assumption as to matters of fact.
EFFECTS OF MISTAKE AS TO LAW
STATUTORY PROVISIONS
Section 21 of Indian contract act, 1872 A contract is not voidable because it was caused by a mistake as to any law in force in India but a mistake as to law not in force in India has the same effect as a mistake of fact.
ILLUSTRATION-
A and B make a contract grounded on the erroneous belief that a particular debt is barred by the Indian Law of Limitation; the contract is not voidable.
EXPLANATION-The section represents the doctrine that relief is not given against mistake of law. The doctrine is, however, subject to certain qualifications. A man is not always allowed to go back upon what he has deliberately done merely upon the allegation that he acted under a misapprehension of law. Relief may be given in cases, where the mistake is so fundamental as to prevent any real agreement upon the same thing in the same sense. The section is not intended to give validity to any apparent agreement not satisfying the conditions of real consent as laid down in 163 Section 10 and Section 13.
In the second part of the section, the Indian Legislature has adopted the rule of the English Common Law, that a mistake as to a foreign law has the same effect as a mistake of fact.
Ignorantia juris non excusat i.e, ignorance of law is no excuse.
164 Lord Ellenborough, C.J., said in Bilbey v Lumley
“Every man must be taken to be cognizant of the law; otherwise, there is no saying to what extent the excuse of ignorance might not be carried. It would be urged in almost every case”.
162Story’s Equity Jurisprudence, Vol. I, 8th Ed., Sec. 140, p.159 163 Indian Contract Act, 1872 164Bilbey v Lumley (1802) 2 East 469
Page | 104 Though a person cannot plead ignorance of law (in the sense of the law of the land) as an excuse, he is not expected to be familiar with all foreign laws, so that, ignorance of foreign law is put on a level with ignorance of fact.
In Cooper v Phibbs,165 the plaintiff took a lease of certain fishery rights, and afterwards sought to avoid the contract on the ground of mistake, in that he did not know that the fishery belonged to himself, and ignorantly thought that it belonged to himself, and ignorantly thought that it belonged to the defendant. The defendant contended that this being a mistake of law, the plaintiff could not succeed. But, the Court held that ignorance of a private right was on a par with ignorance of fact and therefore would be excusable in law.
The principle stated in Cooper v Phibbs has also been followed in India. In Kalyanpur Lime Works Ltd. V State of Bihar166, the Government represented to A that it had the right to forfeit the lease on Bond and grant a fresh lease to him. A entered into a contract in consequence. But as a result of a Privy Council decision the Government’s title became restricted and it was incapable of making out the title, which it stated it had at the time of the contract. The Supreme Court held that in the circumstances the contract was not void on the ground of mistake and Government must perform that part of the agreement, which it was possible to perform.
Section 72 of Indian contract act, 1872
Liability of person to whom money is paid or thing delivered by mistake or under coercion- A person to whom money has been paid, or anything delivered, by mistake or under coercion, must repay or return it.
ILLUSTRATIONS-
(a) A and B jointly owe 100 rupees to C. A alone pays the amount to C, and B, not knowing this fact, pays 100 rupees over again to C. C is bound to repay the amount to B.
(b) A railway company refuses to deliver up certain goods to the consignee, except upon the payment of an illegal charge for carriage. The consignee pays the sum charged in order to obtain the goods. He is entitled to recover so much of the charge as was illegally excessive.
EXPLANATION- The remedy provided under section 72 is only an equitable one, to make a refund to the plaintiff of the money paid by him. It cannot be said that every sum paid under a mistake is
165Cooper v Phibbs (1867) LR 2 HL 149 166Kalyanpur Lime Works Ltd. v State of Bihar1954 SCR 958
Page | 105 recoverable, no matter what the circumstance may be. There may in a particular case be circumstances, which disentitle a plaintiff by estoppel or otherwise. 167This section makes no distinction between mistakes of facts and mistakes of law.
The term ‘mistake’ under Section 72 comprised within its scope a mistake of law as well as a mistake of fact and under that section a party would be entitled to recover the money paid by mistake or under coercion and if it were established that the payment had been made by the party laboring under a mistake of law, the voluntary nature of the payment would not affect the liability of the payee to refund it.
Section 72 of the Indian Contract Act, 1872 is based upon the theory of unjust enrichment. The theory or doctrine of unjust enrichment has three ingredients-
(i) The defendant has received, and thereby enriched by receiving some benefit from the plaintiff. (ii) The defendant must have been thus enriched, at the expense of the plaintiff. (iii) It would not be just and equitable to allow him to keep the benefit.
No person can unjustly enrich himself due to mistake by him in the course of dealings by him with another and the plaintiff would be entitled to the refund of the unjust enrichment by the purchaser, the relief could be given to the vendor.
It may, however, be noted that the principle of unjust enrichment under section 72 cannot be extended to give a right to the State to recover or realize vend fee after the statute for realization of vend fee has been struck down. The principles of unjust enrichment are applicable in claim of refund 168 of tax paid under an unconstitutional provision of law.
Article 3.4 of UNIDROIT Principle or Principles of International Commercial Contracts Definition of mistake- Mistake is an erroneous assumption relating to facts or to law existing when the contract was concluded.
EXPLANATION-This article equates a mistake relating to facts with a mistake relating to law. Identical legal treatment of the two types of mistake seems justified in view of the increasing complexity of modern legal systems. For cross-border trade the difficulties caused by this complexity are exacerbated by the fact that an individual transaction may be affected by foreign and therefore unfamiliarlegal systems.
LEADING CASE LAWS
Mistake arising out of mistake of law:
The doctrine of Ignorantia juris non excusat or ignorantia legis neminem excusat (ignorance of law is no excuse), finds statutory recognition in Section 21 of the ICA, which therefore, lays down that the contract cannot be avoided even when it is caused by mistake of law.
167Shiba Prasad v Srish Chandra. AIR 1949 PC 297 168Shree Digvijay Cement Co. Ltd. V Union of India. AIR 2003 SC 767
Page | 106 169 Kalyampore Lime Workers Ltd. V. State of Bihar and Ors. Facts:
The government of Bihar owned an estate known as Murli Hill is Sub-Division of Sasaram in the District of Shahabad. In 1928, The rights of this estate were given to Kuchwar Co for a period of 20 years. In January 1933 Kuchwar Co. underwent voluntary liquidation and the liquidators of the company purported to assign the leasehold interest of the company to one S G Bose for Rs. 35,000 by an unregistered deed dated 30th September, 1933. The assignee took possession of the property, on the 9th October, 1933, but was stopped from working the quarries under orders of the Government from the 8th December, 1933, as the Government considered the assignment to be a breach of the contract in the lease which made the lessees' interest liable to forfeiture. The government decided to lease this property to Kalyampore lime co... Before doing this the government forfeited the lease to Kuchwar Co and then offered THE Lime co. the lease of the estate. Accordingly, the Lime co.The Lime Co. obtained possession on the 15th of April, 1934, and started quarrying operations on the 15th May, 1934. Meanwhile on 24th September, 1934 Kuchwar co. sued secretary of state for faulty forfeiture of the lease and demanded injunction of the lease. The Privy Council upheld the High Court’s decision and debarred the secretary to grant any lease to Lime Co... However, the Lime Co. did not stop quarrying on the estate as it was not a party to the suit. Kuchwar Co. then moved to the court for contempt proceedings against the Lime Co. The Privy Council set aside the order of the High Court in contempt proceedings but did not grant restitution to Lime Co… After this the rights of the estate were held by Kuchwar Co. for 10 years which expire in 1948. In 1948 the Lime Co wanted the government to assign the lease to them, however the government assigned the lease to Dalmia and Co. (another company).
Lime Co. filed a suit against the government and Dalmia and Co... The case finally went to supreme court by appeal.
Judgment:
The court observed that neither of the parties involved was in error as regards to the essential facts upon which the contract was formulated and proceeded. Both parties knew that there was an assignment of the lease by the Kuchwar Company in favour of S. G. Bose and both parties were aware that as per the terms of the lease an assignment by the lessee without the consent of the lessor would make his interest liable to forfeiture. The court further said:
“The mistake, if any, was with regard to the effect of the law of registration upon the validity of the assignment deed. At the most, such mistake would be a mistake of law and under section 21 of the Indian Contract Act the contract would not be void on that ground.”
1691954 SCR 958.
Page | 107 The judges observed that the plaintiff cannot get any relief merely on the ground that its officers had taken land acquisition proceedings in ignorance of law which existed at the relevant time. In fact, if a litigant is allowed to re-open a previous case on the ground that he was ignorant of some law it would leave to endless litigation.
Mutual Mistake:
Where there is a mutual mutual that is the mistake has been committed by both parties, there is consensus ad idem. The mistake does not make the contract void by itself. However, the contract can be declared void when the mutual mistake in question is fundamental to the very identity of the contract.
Bell v Lever Brothers Ltd170. Facts:
Lever Brothers Ltd was a company which was involved in trading business in West Africa, by way of a 99% owned subsidiary known as the Niger Company. The Niger trade was in financial straits. The owner of Lever Bros,Lord Leverhulme, hired D'Arcy Cooper (a Quaker by profession and also a senior partner at his Uncle's accountancy firm, Cooper Brothers) to be the chairman and manage the crisis. A loan from Barclays Bank was negotiated by Cooper,the bank insisted that a professional management should be appointed to run the Niger subsidiary. So, Cooper hired a friend of his, Ernest Hyslop Bell,(a senior manager at Barclays) as chairperson of subsidiary company. Also Mr. Snelling, a tax consultant who successfully got Lever Bros a big tax refund in 1921, was appointed as the vice chairman of the subsidiary company. They performed well financially, and turned a profit. The subsidary company was then merged with a former competitor and formed a company called the new United Africa Company in 1929.
Bell wanted to run the new United Africa Company, as he had left his Barclays position. At luncheon at the Savoy Grill he agreed with Cooper for a big compensation package ( of £30,000) and retire. A similar "golden parachute" of £20,000 was accepted by Mr Snelling. However, shortly after, it was discovered that Bell and Snelling had been participants in running of a regional cocoa cartel, and used the information received from thereto sell cocoa from their personal accounts. Lever Brothers Ltd therefore brought a suit for rescission of the compensation package on grounds of mistake of fact.
Judgement:
At the trial action, the jury found that there was no evidence of fraud on part of the defendants, and that they entered into the compensation agreements they had not directed their minds to previous breaches of duty. The case was therefore one of mutual mistake, as both the parties had mistaken assumption. Wright, J. held that this assumption that the state of facts existed which entitled to recover the money paid. The decision was unanimously affirmed by the Court of Appeal. In the House of Lords, however an appeal was allowed by a majority of three to two. Lord Balensburg, one of the majority, based his opinion largely on the question on amendments of pleadings and stated that he would allow the appeal as mutual mistake has not originally be pleaded. The other two majority opinions, those of Lord Atkin and Lord Thankerton, both rested on the ground that the
170 1932 A.C. 161
Page | 108 mistake was not fundamentally sufficient to avoid the contract although they reached this conclusion by different paths.
Mistake as to a matter of private right not a mistake of law:
Mistake in matters of private rights or arising out of personal contracts cannot be held as mistake of law.
Cooper v Phipps171. Facts:
Mr. Cooper, the complainant, was the nephew of the owner of the salmon fishery near Ballysadare, Ireland. He had leased this fishery from his Uncle. After his uncle died and the time of the lease was complete, the complainant renewed the lease for the salmon fishery with his Aunt. However, later, it was found out that in the Uncle’s will, Mr. Cooper had been given life tenancy of the fishery. This meant that there was no need for the renewed lease between aunt and Mr. Cooper. Later, when next payment for the lease contract signed with his aunt was due, a dispute arose between them due to non-payment.
Judgment:
It was held that the contract and the lease which existed between the complainant and the defendant was voidable and not void. This was due to the fact that the claim was in equity, as Mr. Cooper had only beneficial ownership of the fishery and not legal ownership. This case was concerned with ‘res sua’ and it was a mistake as to the title of the property. As Mr. Cooper was already the beneficial owner of the fishery there could be no lease for the fishery . The judges unanimously held that such an agreement would be set aside due to common mistake made by both parties as to ownership of the fishery. All the three judges held that mistake of private right cannot be seen as mistake of law. Lord Westbury in this regard said:
“It is said, but in that maxim the wordjus is used in the sense of denoting general law, the ordinary law of the country. But when the word jus is used in the sense of denoting a private right, that maxim has no application. Private right of ownership is a matter of fact; it may be the result also of matter of law; but if parties contract under a mutual mistake and misapprehension as to their relative and respective rights, the result is, that that agreement is liable to be set aside as having proceeded upon a common mistake. Now, that was the case with these parties - the Respondents believed themselves to be entitled to the property, the Petitioner believed that he was a stranger to it, the mistake is discovered, and the agreement cannot stand.”
Compensation when payment made due to mistake of law:
The word mistake as under section 72 of ICA refers to both mistake of law as well as mistake of fact. Payment made by mistake in section 72 must refer to payment which was not legally due and could not have been enforced.
171(1867) LR 2 HL 149.
Page | 109 172 Sri Sri Shiba Prasad Singh vs. Maharaja Srish Chandra Nandi Facts:
Sri Sri Shiba Prasad Singh(appellant) is the owner of Jharia estate. In 1898 his predecessor granted a mining lease of a part of that estate to the predecessor of Maharaja Srish Chandra Nandi (respondent). The lease agreement required payment of royalty to the leasor. In 1898 when the lease was granted the only railway available for transport of coal from this district was the East Indian Railway, but it was contemplated that the Bengal Nagpur Railway might be extended so as also to serve this district. The lessor contended that once the higher rate of royalty had come into operation, it was permanent and not affected by a subsequent rise in the rate of freight. On this view there had been no overpayment and royalties were still payable at the higher rate. The lessee on the other hand maintained that on a true construction of the lease the higher rate of royalty was only payable on coal dispatched by rail at a freight more than 2 annas below the freight at the date when the lease was entered into. On this view a higher rate of freight ceased to operate on 1st April, 1921. There was an overpayment of Rs. 63,680 because payment was made at higher rate until September 30 1923 also future royalities were supposed to be retained up to that amount and after that at lower rates. The lessee acted upon this view of his rights. No further payment of royalties was made until August 20, 1925, and after that date he continued to pay royalty at the lower rates.
Judgement:
Section 72 of the Indian Contract Act, 1872does not distinguish between mistakes of fact and mistakes of law. Payment "by mistake" refers to a payment which was not legally due and hence could not have been enforced: the mistake lies in the misconception that the money paid was due it was not actually due. Once it is established that the payment in question was not due, it is irrelevant to consider whether or not there was a contract between the parties under which some other sum was due.
Therefore, when money is paid under a mistaken belief that it was legally due, it is sufficient to bring the case within Section 72. If a mistake of law has led to the formation of a contract, Section 21 enacts that that contract is not for that reason voidable. If money is paid under the contract, it cannot be said that that money was paid under a mistake of law: it was paid because it was due under a valid contract, and if it had not been paid, payment could have been enforced.
173 P.S. Machado vs. K. Venkatarama Gopala Iyer Facts:
A notification was issued by government fixing the rates of transport charges for country crafts and other sailing vessels also introducing a system by which route agents were nominated by the Government who were sole authority to secure for the intending shippers shipping space. These route agents collected transport charges for the cargo offered for transport by the shippers. A was nominated as route agent between Kochi and Tuticorin including all intermediate ports in between.
172(1950) 52 BOMLR 17. 173 AIR 1963 Mad 231
Page | 110 Under the rules the rates could only be increased by the government. B entered into a contract with the government for supply of salt. He transported through country crafts engaged by A as route agent. In the mean-time increased rates of transport were recommended by the freight advisory committee to the Controller of Indian Shipping. But even before the order of the controller could be obtained sanctioning the increased rates, A instructed his agents to demand from all shippers, freight charges at increased rates, A instructed his agents to demand from all shippers, freight charges at the rate recommended by Advisory Committee. One of such consignors, B, had to pay at the increased rate demanded as he had under the terms of a contract entered into with the Cochin Government to deliver salt within a specified period. B paid at the increased rates under protest. The Controller of Indian Shipping, however, ultimately refused to sanction the increased rate. B then instituted the suit out of which this appeal arises for recovery of the excess charges collected from him.
Judgment:
Excess payments made by the B to the A at the time of the carriage of his goods were under a mistake of law or under coercion and the payment not being the foundation for the contract of carriage can be recovered back by the B.
The judges upheldright to recover excess payment. Payment made by party laboring under mistake of law is recoverable. The voluntary nature of payment would not affect liability of payee to refund it.
CONCLUSION
In the research on the topic, we have examined the effect of mistake of law on contract and also the remedies available (if any) for the payment made under it. When there is a mistake of law, in the interpretation of it, or with regard to the effect of law, the contract cannot be held void or voidable due to reason of the mistake. The main and recurring principle behind this that ignorance of law cannot be an excuse. However, if the mistake is so fundamental to the contract as to prevent any real agreement the contract may be made voidable. A contract where there is a mutual mistake of law, does not become automatically voidable. A contract where there is mistake pertaining to private rights is not a case of mistake of law rather it is a mistake of fact and becomes voidable. A mistake of foreign law is considered as a mistake of fact, and if such a mistake is bilateral it will lead to a void contract. Also, in the case of international contracts, mistake of law makes a contract voidable, keeping in mind the complexity of laws on international level.
Section 72 of the Indian Contracts Act, deals with relief provided in case of mistake and coercion. Here mistake refers to both mistake of law and mistake of fact. In case there is a valid contract between he parties, which is caused by mistake of law, the payments made under such contracts are valid, and its payments are to be paid they can be enforced. However, payments which are made under mistake of law, payments which were not legally due, can be recovered. This is based on the principle of unjust enrichment.
Page | 111 Kirty Ranjan Rani Mental Health Laws in India
Abstract:
Millions of people from all over the world suffers from mental illness in the form of anxiety, depressions or substance abuse disorders. In the discourse of health matters and related laws people generally discuss about the physical health issues and neglect issues regarding mental health care. Such ignorance and little awareness has created an alarming situation all across the globe. Right to health recognizes the right of everyone to enjoy highest attainable standard of physical and mental health as stated by International Covenant on economic, social and cultural rights. The scope of the research is to shed the light from the historical background to the current scenario about the mental health care. In India right to health is provided under article 21 of the constitution wherein it has been interpreted by the judiciary that right to life is more than mere animal existence. Every person has the right to lead their life with dignity without any discrimination. The article deals with the evolution of mental health care acts in India and various other legislations to protect and safeguard the rights and interest of people suffering from mental illness and disorders. The role of judiciary has played a critical role for securing the rights of such people. The interpretations and judgments through various cases has helped the legislature in formulating policies related to mental health care. Apart from the constitutional perspective the research also highlights various international conventions and treaties related to mental health care.
INTRODUCTION:
Health of an individual is considered one of the significant aspects of a progressive society. The maxim “There is no health without mental health” truly defines the current scenario of the world. In the recent years the cases of mental crisis has increased at an alarming rate in all over the world. According to the WHO( WORLD HEALTH ORGANIZATION) a “mental health is a state of well being in every individual realizes his or her own potential, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to her or his community” 174. The history of human evolution is the result of the strong bond between a physical health and a mental well being.
“Mental illness or mental disorder is a behavioral or mental pattern that causes significant distress or impairment of personal functioning”175. It is basically a process of how a person thinks, reacts or feels
174World Health Organization. Promoting mental health: concepts, emerging evidences, practice(summary report) Geneva: World Health Organization: 2004 175Bolton & Derek, What is Mental Disorder?: An Essay in Philosophy, Science, and Values 6 (OUP Oxford 2008).
Page | 112 in everyday situations. In India mental illness is still considered to be a taboo concept and the reason behind this is the stigma which is attached to the society related to psychiatric disorders. People are still being ashamed of, and are not willing to talk openly about it. A study reported in WHO, conducted for the NCMH (national care of medical health), states that at least 6.5% of the Indian population suffers from some form of the serious mental health disorders.176 The changing patterns in the life style of people and the long working hours with more work pressures have resulted in mental distress. The large number of population in the country is dealing with the problems of stress, depression, anxiety issues etc. This has affected the work productivity to a greater extent. It is estimated that, in India, the economic loss, due to mental health conditions, between2012-2030, is 1.03 trillions of 2010 dollars.177 In order to curb the mental health issues the government recently announced its mental health policy and proposed mental health bills to address the gasp in mental health care, also the recommendation of national human rights commission and directives from supreme court of India have accelerated the pace of implementation of mental health services in the country. In addition to it the medical health care departments, media, several advocacy groups are continuously making efforts in promoting mental health services to the citizens.
HISTORICAL BACKGROUND
The history of mental illness can be traced from the evolution of human being. the historical conceptions related to mental illness was based on three theories supernatural, somatogenic and psychogenic theories. In supernatural model the person suffering from insanity was treated poorly and said to be witches or enslaved by evil or demonic spirits. The somatogenic theory relates to abnormality in behavior due to biological disorder or illness. Psychogenic theory attributes to any traumatic or stressful experiences178. Philosophers such as Aristotle, Plato etc advocated humane and responsible care for the people who suffered from psychological disorders. It was first the Hippocrates, a Greek physician who began to treat mental illness as psychological disorder rather considering it as a demonic possessions.
In India law and medicine is being practiced over decades. The Arthashastra dating from 400 BC and the Manusmriti from 100 AD were influential treatises in India, texts that were considered authoritative legal guidance. Similarly the ancient text book of medicine Charaka Samihta, which is a part of Hindu Ayurveda was considered an authoritative source of medical practices in India 179. While the psychiatrist is concerned primarily with the diagnosis of mental disorders and the welfare of the patient, the court is often mainly concerned with determination of competency, dangerous, diminished
176Mansi, India is most depressed country in the world, India today (Oct. 10, 2018, 15:40 IST). www.indiatoday.in/education-todays/story/india-is-the-most-depressed-country-in-the-world-mental-health 177Supra note 1 178Farreras, I. G. (2019).History of mental illness. In R. Biswas-Diener & E. Diener (Eds), Noba textbook series: Psychology. Champaign, IL: DEF publishers. DOI:nobaproject.com 179 ibid
Page | 113 responsibility and/or the welfare of society180. it is the responsibility of the psychiatrist to look after the patients of mental disorder and treat them with the sense of human dignity whereas the responsibility of the legal authorities is to see that the rights of the insane or rights of person with mental illness are not being violated because these people also deserves the life of dignity and the respect. All most every society in the world has a humane approach towards the conditions of mentally ill people therefore In order to safeguard the interest of such people various laws as well as the acts are being made from time to time so that the issues of mental illness can be curbed to the greater extent.
Constitution of India and right to health While framing the constitution the constitution makers had taken care about the every aspects which are necessary for an individual to lead the life with respect and dignity therefore under Article 21 of the Indian constitution No person shall be deprived of his life or personal liberty except according to procedures established by law. Right to health is considered in an integral part of right to life enshrined under this article as interpreted by the judiciary. Thus state is under obligation to provide better health facilities to its citizens and failing to do the same results in the violation of fundamental right. In addition to the directive principal of state policy also have provisions that promotes public health care such as under Art. 38 state will secure a social order for the promotion of welfare of people and promoting health care facilities is one of the ways to promote welfare. Similarly Art.39(e), 39(f), Art 41, Art 42, Art, 47 and Art 48A directs the state to make necessary efforts to prove health care facilities to the citizens.
The supreme court of India has given a wide interpretation of Article 21 wherein it says that right to life means something which is more than mere survival of animal existence. The scope of interpretation was extended to right to live with human dignity, right to health, right to pollution free environment, right to education, right to privacy, right to reputation, right to livelihood etc have been considered as the integral part of Art 21 of the constitution. As far as the rights of mentally ill people are concerned including the above rights guaranteed under this article they are provided with the right to work and earn livelihood and be a part of the community. In cases of serious mental illness or disorder the state is under obligation to provide mental health care facilities and protect them from
181 any kind of exploitation.
Mental health legislation in India:
180Narayan, Choudhary Laxmi & Deep Shikha. “Indian legal system and mental health” Indian journal of psychiatry vol. 55,Suppl 2 (2013): S177-81. 181Firdosi, Mudasir & Z. Ahmad, Zulkarnain. (2016). Mental health law in India: origins and proposed reforms. BJPsych International. 13. 65-67. 10.1192/S2056474000001264.
Page | 114 The history of mental health laws can be traced from the time of British regime in India. The first ever such law was made inBritish India was the Lunatic Removal Act 1851, which ceased in 1891. This law was mainly enacted to regulate the transfer of British patients back to England.
The other reforms and legislation to provide mental health care to people are as follows:
In the year 1858, The Lunacy Act (Supreme Court) was formulated by the British crown for setting up mental asylums. The act was made for the treatment and admission of serious cases of mental illness and disorders in the country.
The Lunacy Act 1858 was replaced by the Lunacy Act of 1912 under this act the mental asylums were renamed as mental hospitals and the charge was given to the central government for its maintenance. Psychiatrists were appointed to examine the patients which helped in better understanding for the cause of mental illness.
Mental health Act replaced the Lunacy Act 1858, the advantage of the Mental Health Act (MHA) 1987 was that it defined mental illness in a progressive way, placing emphasis on care and treatment rather than on custody. It provided detailed procedures for hospital admission under special circumstances and emphasized the need to protect human rights, guardianship and the
182 management of the property.
In 2017 MHA 1987 was repealed and the mental health care bill came into existence. The bill focused on various dimensions of mental health such as the rights of person with mental illness. The Act says that every person shall have the right to access mental health facilities that are being funded by the government. It emphasizes on rights of Persons with mental illness where they have equal rights of treatment, easy access to their medical records, protection from inhuman and degrading treatment. The Act also ensures free legal services to such people and in case of any deficiencies complain can be registered under this provision of mental health care. The act laid down certain criteria under which the health establishment has to be registered with the relevant central or state mental health authority. It directs the procedure which needs to be followed for treatments, admission, and discharge of mentally ill patient. In the MHA Act 2017 there is an provisions where a mentally-ill person shall have the right to make an advance directives regarding his own treatment that how he wants to be treated for the illness during a mental health condition and who his nominated representative shall be. The directive has to be certified by a medical practitioner or registered with the Mental Health Board but If a mental health professional, relative, care-giver does not wish to follow the directivesduring the treatmentan application has to be submitted for the same to the Mental Health Board to review, cancel or to make changes in the advance directive. The Act exempts the person suffering from mental illness from the punishment under Indian penal code
182Ibid.
Page | 115 who attempts to commit suicide in such circumstances. The use of electro-convulsive therapy on minors were strictly prohibited and on majors it can be allowed only with the use of muscle relaxants
183 and anaesthesia.
Judiciary and Mental health
Medical insanity is different from legal insanity. In normal situations a person is held responsible for their own actions but a person afflicted with insanity but with lucid intervals, the law presumes the offence of such person to have been committed during the period of lucid intervals therefore a person may be suffering from of mental disorder from the psychiatrist point of view, but he may not be suffering from unsoundness of mind from the point of law.184In the recent years the scope of laws related to mental illness has been broadened by the judiciary with the help of interpretations of different cases. In criminal law the mens rea and actus rea are two important elements to constitute a particular incident as a crime. According to section 84 of Indian Penal Code "nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable
185 of knowing the nature of the act, or that he is doing what is either wrong or contrary to law”.
In the case of Lakshmi v. State186 the Supreme court held that the conduct of the appellant at the time of commission of an offence, as well as his previous and subsequent actions were important factors to determine whether the accused could take up the insanity as a defence or not. In other case of R v. Alluwalia187 where in the court reduced the punishment for the crime committed by the accused through the concept of diminished responsibility. It is a situation when some kind of mental unsoundness prevails during the commission of an offence In such a state of mind the court reduces the punishment. In this particular case the court took liberal decision regarding a woman who had been humiliated and tortured over the years by her violent husband.In State of Kerala v Ravi188 the accused was charged under section 302 of IPC wherein it was contented that the accused was in a fit of impulsive insanity and due to such unsoundness of mind he was not in a state to think about the result of his conduct while stabbing a 15 year girl. The High court rejected the plea and held the accused guilty for the offence by stating that there can be no legal insanity unless the cognitive faculties of the mind are, as a result of unsoundness of mind, so completely impaired as to render the offender incapable of knowing the nature of the act or that he was doing what was either or wrong contrary to law.
183Mental Health Care Act, 2017, No.10, http://www.prsindia.org/sites/default/files/bill_files/Mental %20Healthcare%20Act%2C%202017.pdf. 184Dr.Nandita Adhikari, Law and Medicine, 330(4 ed.2015). 185The Indian penal code 1980, sec 84 186Lakshmi v State AIR 1953 All 534. 187R v Alluwalia (1992) 4 All ER 889 188State of Kerala v. Ravi 1978 KLT. 177.
Page | 116 Supreme court in its various judgments and orders also showed concerns regarding the conditions of patients in mental hospitals and the managements of mental hospitals. In Rakesh Chandra Narayan v State of Bihar189 a petition was filed under Art. 32 of the constitution regarding the conditions prevailing in the mental asylum of Ranchi.The court held that In a welfare State it is the obligation of the State to provide medical attention to every citizen. The State has to realize its obligation and the Government of the day has got to perform its duties by running the hospital in a perfect standard and serving the patients in an appropriate way. The landmark judgment of Sheela Barse v. Union of India190 wherein the petitions was filed regarding the detention of people with mental illness but were not criminals. The court observed that such detentions were illegal as it was the clear violation of Art 21 of the constitution and therefore it was held unconstitutional. Gaurav Kumar Bansal Vs Union of India & Others191 dated 03/01/2019 regarding condition of patients suffering from mental illness in mental asylums. The petitioner has drawn the attention of the Court to the fact that some of the patients suffering from Mental illness and are lodged in Faith Based Mental Asylum situated near Mohalla Kabulpur, District Badayun, Uttar Pradesh, are kept under chains. Apex Court while raising serious concern to the matter clearly stated that "this is not only inhuman and violative of rights of such persons under Article 21 of the Constitution of India, as even a person suffering from mental disability is still a human being and his dignity cannot be violated. It is also against the spirit of Section 95 of the Mental Healthcare Act, 2017".
International conventions on mental health:
The world has recognized the promotion of mental health care, and prevention and treatment of substance abuse, as health priorities within the global development agenda. The Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care were adopted by the United Nations General Assembly in 1991 wherethese principles were adopted to promote the rights of mentally disabled persons in health care in whichthere are specific provisions on informed consent, confidentiality, standard of care and treatment and the rights available to inmates of mental
192 disability institutions
United Nations convention for rights of person with disabilities 2006, changed the subject of disabilities from a social welfare concern to a human right issue. The convention is based on presumption of legal capacity, equality and dignity. According to article 2 of the convention, person with disabilities will enjoy the legal capacity on an equal basis for all aspects of life and article 3 requires the state to take appropriate measures to provide access to support person with disabilities to
189R.C Narayan V State of Bihar, 1988. 190Sheela Barse v Union of India, 1986. 191Gaurav Kumar Bansal Vs Union of India & Others (2019). 192 United nations, Principles for the Protection of Persons with Mental Illness ("The MI Principles"), movement for global mental health (1 Jan 1991) http://www.un.org/documents/ga/res/46/a46r119.htm
Page | 117 exercise the legal capacity. However there is no explicit prohibition of forced interventions in the UNCRPD, but neither does the convention permit compulsory mental health.193 There are various other international standards of good practice which are not legally binding. These include the UN Declaration on the Rights of Mentally Retarded Persons (1971) This declaration guarantees rights respecting the dignity of the mentally disabled, including the right not to be exploited and abused, the right to economic security, the right to a decent standard of living and the right to proper medical care and therapy194; WHO Guidelines for the Promotion of Human Rights of Persons with Mental Disorders (1996), which is a tool to help understand and interpret the MI Principles and evaluate human rights conditions in institutions. Promoting mental health and well-being, and the prevention and treatment of substance abuse, are integral parts of the Sustainable Development Agenda to transform our world by 2030 adopted by the United Nations General Assembly on 25 September 2015195.
Conclusion:
Right to health is recognized as a fundamental part of our human rights which is very important for understanding of a life in dignity. To attain the highest standard of health a person should be physically as well as mentally fit. Traditionally the concept of health was only related to a state where a person is free from disease but in recent years the misconceptions regarding health has been removed. The world has globally accepted the issue of mental health as an integral part of right to health. Mental health is the balanced development of the individual's personality and emotional attitudes which allows him to act according to the situations. However in most of the cases person suffering from mental illness or disorder is deprived of their rights. Issues related to mental illness or disorders are considered as an stigma that has been attached with the society since long. People are not willing to come out of their cocoon and speak about the issue freely. In this scenario it is important that certain rules and regulations must be made to safeguard the rights and interests of such people and provide them the equal opportunities in order to maintain the dignity of their life. In case of contravention of acts made for the protection of mentally ill people the offender must be penalized accordingly. The countries that ratified the international conventions and treaties related to mental health must adhere to it. In order to be a civilized and progressive society it the duty of the people to cooperate, coordinate and respect each other’s rights to maintain the dignity of life of a human being.
ANKIT MITTAL
193United Nations General Assembly Session 61 Resolution 106. Convention on the Rights of Persons with Disabilities A/RES/61/106. 194 United nations general assembly resolution 2856 (XXVI), Declaration on the Rights of Mentally Retarded Persons, united nations human rights (20, Dec 1971). https://www.ohchr.org/EN/ProfessionalInterest/Pages/RightsOfMentallyRetardedPersons.aspx
195WHO,Mental health included in the UN Sustainable Development Goals. https://www.who.int/mental_health/SDGs/en/
Page | 118 ABSTRACT
In this judgment, the Supreme Court of India declared 150 years old adultery law as unconstitutional. In this judgment Supreme Court struck down the section 497 of Indian Penal Code, 1860 along with section 198 of Cr.P.C. as unconstitutional, thereby decriminalizing the offence of adultery. In the judgment the Supreme Court said that unequal treatment of women invites the wrath of the constitution, equality is the governing principle of a system and that a husband is not the master of wife, section 497 of IPC is manifestly arbitrary the way it deals with women and violates the article 14 and 21 of Indian Constitution.
While the judgment is bound to have a far-reaching impact upon marriages in India, the adverse fallout cannot be ignored. In a country beset with rising divorce rates and cases of marital infidelity, decriminalization of adultery will critically endanger the institution of marriage. Not only does it run the risk of fostering extra-marital affairs, but the emergence of divorce as the way out will also catalyze the breakup of marriages, leaving little children in the lurch.
So it would be better if Supreme Court directed the parliament to amend the adultery law in such a way that the cognizance of this offence should not be limited to adultery committed with a woman married to another man. Both male and female offender should be liable to be punished and both aggrieved husband and wife (in case male offender married) should have the right to file the case against accused party. So the risk of extramarital affairs, increase the rate of dissolution of marriage will not increase.
KEYWORDS- Adultery, rising divorce, equality, the institution of marriage, arbitrary.
JOSEPH SHINE V. UNION OF INDIA, WRIT PETITION (CRIMINAL) NO. 194 OF 2017
Introduction
In a judgment that has the potential to impact millions of families, the Supreme Court of India declared the 150-year-old adultery law as unconstitutional. This judgment, passed by a bench of five judges, struck down the section 497 of Indian Penal Code, 1860 along with section 198 of Cr.P.C. as unconstitutional, thereby decriminalizing the offense of adultery.
Page | 119 While the judgment is bound to have a comprehensive impact upon marriages in India, the adverse fallout cannot be ignored. In a country beset with rising divorce rates and cases of marital infidelity, the decriminalization of adultery will critically endanger the institution of marriage. Not only does it run the risk of fostering extra-marital affairs, but the emergence of divorce as the way out will also catalyze the break-up of marriages, leaving little children in the lurch.
Historical background
Historically, the Supreme Court has dealt with the adultery laws on three different occasions. In Yusuf Abdul Aziz v The State of Bombay196, the petitioner argued that Section 497 IPC was unconstitutional because it unfairly discriminated between men and women – exempting women from punishment. In Smt. Sowmithri Vishnu v Union of India & Anr197, the petitioner argued that both Section 497 IPC and Section 198(2) Cr.P.C. were bad for unfairly discriminating on the basis of sex, where the petitioner argued that Section 497 IPC didn’t have any basis to only punish one kind of adulterous relationship. In V. Revathi v Union of India & Ors198, the petitioner argued that Section 198(2) Cr.P.C. was unconstitutional for unlawfully discriminating against women by not considering them “aggrieved” to trigger the legal process.
How section 198 of Cr.p.c is against fundamental rights?
My views are contrary to the decriminalization of adultery sought by the Petitioner. Rather, I submit that only Section 198 of the Code of Criminal Procedure, 1973, which prohibits wives from filing adultery complaints, be struck down.
On relying upon different grounds to suggest why this section should be made gender-neutral. I submit that Section 198 of the Cr.P.C. violated Article 14 of the Constitution of India because it fails the test of reasonable classification as it carves out arbitrary classifications in favor of the husband. The Section created an arbitrary classification between an aggrieved husband vis-à-vis an aggrieved wife. Further, it also created an arbitrary classification between married and unmarried women, thereby violating the fundamental right to equality under Article 14 of the Constitution of India.
196[1954 SCR 930]. 1971985 AIR 1618, 1985 SCR Supl. (1) 741. 198 1988 AIR 835, 1988 SCR (3) 73.
Page | 120 • I further submit that Section 198 of the Cr.P.C. also violated Article 15 of the Constitution, which prohibits gender-based discrimination. It was also inimical to the right to life under Article 21 of the Constitution. It was a retrograde provision that demonstrated the failure of the State to provide equal justice under the Directive Principles of State Policy. Needless to add, the heteronormative nature of Section 497 was a gaping loophole willfully exploited by married and unfaithful men to the detriment of their wives. • It creates an offense against men only, rendering a right to prosecute by the woman null and void. • It creates an arbitrary classification between married women and unmarried women. • The Impugned Provisions violate Article 15 of the Constitution of India and cannot be accorded any protection under Article 15 (3) i.e.Nothing in this article shall prevent the State from making any special provision for women and children. • The Impugned provisions also violate Article 21 of the Constitution India
Adultery Judgment – Opinion
Adultery would not be a crime now which will destroy the very foundation of marriage. So I submit for making section 497 of Indian Penal Code, 1860 and section 198 of Code of Criminal Procedure, 1973 as gender neutral and not unconstitutional.
Under the adultery law, only the husband of the woman had the right to file a case against the man with whom she commits adultery, but this law would not prevail now. Along with section 497 of Indian Penal Code, 1860, Supreme Court has struck down section 198 of Code of Criminal Procedure, 1973 which allowed the husband to bring charges against the man with whom his wife has committed adultery.
What about the Future of Children Born out of such marriages?
There will be breakdown of marriage and the future of children born from such marriages will be affected. Hon’ble Supreme Court has struck down the section 497 of IPC read with
Page | 121 section 198 of CrPC just because the woman had no right to prosecute, but it should have laid down the remedies for children who will be affected because of such adulterous relationships.
Right to Prosecute under Section 306 of Indian Penal Code, 1860 if Suicide is committed by a Spouse
Hon’ble Supreme Court clearly understands that adulterous relationships would cause disruption in society, but then too it has struck down section 497.
Supreme Court has stated that if any of the spouse would commit suicide because of the adulterous relationship by the other spouse, then one would be able to prosecute under section 306 which relates to Abetment of Suicide. This would mean that suicide cases in marital disputes will increase now. Supreme Court could at least direct the Government to add adultery as an offense under 498 (A) of the Indian Penal Code, 1860.
Conclusion and suggestion
From now on, the only remedy available to a man or woman who finds his partner to be in an adulterous relationship would be to go for divorce. Hon’ble Supreme Court should have thought that this decision would end up the institution of marriage. Hon’ble supreme court should have directed to amendment of Section 497 of the Indian Penal Code, 1860 as this section is discriminatory against women and violates Part III of the Constitution of India and amendment of Section 198 (2) of the Code of Criminal Procedure, 1973 as this section is discriminatory against women and violated Part III of the Constitution of India.
Parliament will need to take some steps immediately to rectify the damage done by the Supreme Court in Adultery verdict and to make adultery penalize for both male and female so that institution of marriage could be saved from damaging in future.
Page | 122 Legalization of Physician-Assisted Suicide (PAS) and euthanasia: An Indian perspective Purunjai Tewari ABSTRACT
Physician –Assisted Suicide (PAS) has become a disputed topic over a decade and has captured the eyes of kind no person working in every kind of field. Although active euthanasia is illegal in most countries of the world with few exceptions being –Netherland, Belgium, Luxembourg, Columbia and assisted suicide is legal in Switzerland, Canada, Germany, Japan. The legal status of PAS and euthanasia both active and passive lies within Indian Penal Code 1860 .Active euthanasia is an criminal offence under section 302 (amounting to murder )and 304 (punishment for culpable homicide not amounting to murder). The difference between euthanasia and physician assisted death is in who gives the lethal dose, in euthanasia, it is done by a doctor or by a third person, but in physician-assisted death, it is done by the patient himself.
The facets of Physician-Assisted Suicide entitles an individual to choose his own painless death. The opponents feel that a physician's role in the death of an individual violates the central role of the medical profession. Moreover, undiagnosed depression and possibility of social ‘coercion’ in people asking for euthanasia put a further question mark on the ethical principles overlaying such an act. These things have led to maintain strict laws for PAS, the assessment of mental state of person is mandatory and the role of psychiatrist becomes important. Although PAS is still illegal in our country but there are several organisations like Death with Dignity that assist it.
KEYWORDS:Physician –assisted suicide, euthanasia, Indian penal code, coercion, legal.
INTRODUCTION
Page | 123 “If I cannot give consent to my own death, then whose body is this? Who owns my life?”-
Sue Rodriguez
Sue Rodriguez spoke these words decades ago but the shades that they depict echoes in this era also. Assisted suicide is suicide committed with the help of another person basically a physician. This term is often even used as Physician –Assisted suicide(PAS).This involves a physician who knowingly and intentionally provides a person with the means required to commit suicide, and that includes counselling about lethal drugs , prescribing such lethal doses or supplying the drugs .
Countries like Canada, Belgium, Switzerland, Netherlands allow (PAS).Physician assisted suicide is often confused with euthanasia , in euthanasia the physician administers the means of death , usually a lethal drug . Whereas in PAS the patient voluntarily expresses his or her desire to die and request a does of drugs that leads them to eternal peace far away from the suffering of the worlds. The main difference among the two of them is that in PAS it requires the patient to self administer the medicine .
Euthanasia whereas means giving a yes to your death i.e the practice of intentionally ending one’s life to be relieved from pain and suffering. There are different kinds of laws for euthanasia and PAS in different countries and these two are mostly banned in 99% countries with the exception being Netherlands, Switzerland, Canada , Belgium.
There are three kinds of euthanasia namely voluntary, non-voluntary and involuntary euthanasia. The first one includes the consent of the patient and is legal in some countries and the rest two euthanasia does not include the consent of the patient and is banned in almost all the countries. Passive euthanasia is legal under some circumstances in some countries and passive euthanasia basically means (pulling the plug out of the life supporting system).Active euthanasia is legal only in very few countries and till some extent in some countries. Countries like Pakistan, Nigeria, etc does not even have any kind of approval for active euthanasia.
In today’s era where we have got the medical technology at it’s par level there are still many problems that are not curable and thus the concept of euthanasia and PAS arises when older people begin to think that they have become an unmovable load on their children and so they
Page | 124 desires this self made death and that’s how the whole concept arises. But all of this can be prevented by showing some love, care, to them and making them realise that yes they are not a load on the society or on their family members so that they can still live on even if they have given up on life .As it is stated in article 21 - right to life is a fundamental right but that does not give the right to die . Whereas in some countries when death is inevitable and the patient who is about to die is having only six months to one year of time can choose the go with assisted death by not becoming a burden of pain on his or her family any further and this practise is allowed in some states of United states of America .
2. Euthanasia
2.1Definitions
The exact definitions of euthanasia have varied from time to time in history place to place in world and even in today’s era it is still not that clear, the basic definition that comes out to be is
"painless inducement of a quick death". The definition given by the Oxford University is that includes the suffering of a patient and so the definition goes on like this "the painless killing of a patient suffering from an incurable and painful disease or in an irreversible coma". Which again brings us to the position where one would think if this is the definition given out by Oxford then what is the difference in PAS and euthanasia and well my friends that is the thing that is still being worked out yet . And nothing has came out to be a real help. The second element that must be added in the definition is that the death of the patient must be intent rather than being accidental and the intentional death should be merciful and without pain.
Classification of Euthanasia
Euthanasia can be classified into three categories according to the person given consent
a. Voluntary euthanasia b. Non- voluntary euthanasia c. In voluntary euthanasia
The debate is still going on whether the non-voluntary euthanasia (by extension or involuntary) comes under the euthanasia or not?
Page | 125 Voluntary euthanasia
It is conducted with assent of the patient , it is like allowing someone to die on his/her own. Basically it is a practise of ending one’s life in a painless manner and as of 2016 active euthanasia has been legal in countries like Belgium, Netherlands, Switzerland, Columbia, and Canada.
It can be carried out by refusal of foods, nutrient, vitamins, proteins .etc
Non voluntary euthanasia
This is the case where the consent of the patient is unavailable , like child euthanasia it is banned though out worldwide but is decriminalised under certain circumstances in Netherlands.
Involuntary euthanasia
It is conducted against the will of the patient .It is widely opposed in almost all of the countries and is regarded as crime under legal jurisdiction of all the countries.
Passive and Active Euthanasia
Voluntary, involuntary and non-voluntary euthanasia can be further classified into active and passive euthanasia. Active euthanasia involves death of a person by means of lethal substance that is given to him or her like overdose of drugs, pills, or by any other means , whereas in passive euthanasia a person is left to die on his own i.e the life supporting machines are turned down . This is morally unsatisfactory distinction even though the person does not actively kills the other person but he is aware of the fact that he is going to die at the current state of his body if left undiagnosed.
The different ways to carry out passive euthanasia are
1. Withholding treatment – when he not cured of the problem that he is facing with (left undiagnosed) that will extend the life of the person upto sometime but eventually he will also die. Page | 126 2. Withdrawing treatment –when the life supporting machines or vaccines are taken out of the person so that he dies then and there only.
After all this comes the Indirect euthanasia –this is the way in which the person is supplied with medications and drugs that help him reduce pain from his suffering but have side effects leading to death . Since the primary aim is not death this method is morally accepted by few peoples.
3. India current position on Physician assisted suicide(PAS) and Euthanasia:
The legal status of PAS and euthanasia both lies in Indian penal code ( IPC) which deals with the issues of euthanasia both active and passive as well. In context to Indian penal code 1860 active euthanasia is an criminal offence under article 302 punishment for murder or under 304 punishment for culpable homicide not amounting to murder. The legal case of PAS in India would be abetment of suicide according to article 306 of IPC. So therefore anybody willing to go through PAS or euthanasia needs to go to courts of law in India and on no accounts of PAS and euthanasia courts have ever given a clear judgment.
India is not alone many other countries have been trying to get judgment on this from decades. There also have been issues of the attempted suicide in India, and the IPC Section 309 recognizes it to be a punishable act. The law goes on to define principle as “Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished for a term no less than of one year or a with fine or with both .”
The case of Aruna shanbaug, a nurse who had to deal with a vegetative state for 37 years after a hospital worker assaulted her brutally. She was a nurse of Mumbai’s King Edward memorial hospital. This was one the major case in the history of India related to PAS and euthanasia.
4. What do Indian Medical Professionals Think About Physician Assisted Suicide?
India is a healthy example of varied culture, customs, and religions, which all have preserved their identities and also mingled with the historic Indian philosophies and rituals. Disentangling
Page | 127 religion and culture , customs and rituals, and beliefs and attitudes is a herculean task in the Indian context .
5. The important role of a psychiatrists in the decision making process
A survey conducted by the Association for Palliative Medicine, United Kingdom, supports that the majority of palliative medicine specialists oppose a change in the law on assisted dying. They argue that people who work with dying patients must be taken onboard as they have a wealth of information regarding the matter at hand.
A qualitative observational study done in The Netherlands, which is one of the countries where assisted suicide is legal, suggests that euthanasia practice involves extensive deliberations, the majority of which do not lead to death. Euthanasia discussions lead to two consequences:
i. The talk puts the onus on patients to continue discussions toward a euthanasia death. ii. There is a socio-therapeutic component, which tends to affirm social bonds and social life. iii. An empirical research carried out in the United States on oncology patients, oncologists, and the public suggests that among their sample, about two-thirds of oncology patients and the public found euthanasia and PAS acceptable for patients with unremitting pain. This has been the case in studies focused on people who are suffering. Oncology patients and the public found euthanasia and PAS least acceptable in the vignettes involving “burden on the family” and “life viewed as meaningless.” Majority of oncologists found euthanasia or PAS ethically acceptable among patient having unremitting pain. More than a quarter of oncology patients had seriously thought about euthanasia or PAS, and nearly 12% had seriously discussed these interventions with physicians or others. The authors of this study have also concluded that oncology patients experiencing pain are unlikely to desire PAS, but patients with depression are more likely to request assistance in committing suicide,which is an important implication for the role of psychiatrists to get involved early in the process of depression and assist in decision making. Appropriate interventions and evaluations are needed to treat such patients for depression before euthanasia can be discussed seriously.
Page | 128 iv. A Swedish study carried out among physicians working with adult dying patients reported that about half of the physicians had discussed palliative care with all their dying patients, and more than half of the physicians had heard their patients expressing a wish to die. About one-third of the physicians had given analgesics or other drugs in doses such that some of their patients’ deaths were hastened. One-third had also been asked for active euthanasia, whereas 10% had been asked to assist suicide. 6. The issue of religious diversity and concepts of suicide in major religions in India
Hinduism
According to Hinduism, if a person commits suicide, he or she neither goes to hell nor heaven but remains in the earth as a bad spirit and wanders aimlessly until he or she completes the allotted lifespan. The person then goes to hell only to return back on earth to complete the left “karma.”
Committing suicide is considered a violation of the code of Ahimsa (non-violence) and is therefore as sinful as committing murder. “For him who commits suicide becomes Abhisasta (man accused of mortal sin), his blood relations (sapinda) shall not perform the funeral rites.”
Shiskhapatri – The teachings of Swaminarayan has 212 sanskrit verses and talks about do's and don'ts and it says not to commit suicide even in the holy place.
ISLAM According to Prof Yusuf Al-Qardhawi (Islamic scholar), “Euthanasia or mercy killing is forbidden in Islam for it encompasses a positive role on the part of the physician to end the life of the patient and hasten his death via lethal injection, electric shock, a sharp weapon or any other way. This is an act of killing, and, killing is a major sin and thus forbidden in Islam.”
“Do not kill yourselves, for verily Allah has been to you most merciful.” “…and (Allah) is the one who gave you life, then shall He ordain you to die, then shall He give you, your life again, truly mankind is ungrateful.”
According to these Quranic verses, most Muslims believe that suicide, attempted suicide, assisted suicide, and euthanasia are all prohibited in Islam.
Page | 129 Christianity
According to the theology of the Catholic Church, death by suicide is considered as a grave or serious sin and this belief is based on another belief that life is God's property and a gift to this world, and nobody else has the right to destroy it. But the Catechism of Catholic Church says, “We should not despair of the eternal salvation of persons who have taken their own lives. By ways known to him alone, God can provide the opportunity for salutary repentance. The Church prays for persons who have taken their own lives.”
The view of scripture on the topic is that once a person comes to faith in Jesus Christ, every sin they will ever commit is paid for, and it is also stated that “there is now no condemnation for those who are in Christ Jesus.” The Christians believe suicide to be a sin, but do not believe it is impossible to find salvation.
Sikhism The Sikhs believe that the Gurus rejected suicide as nobody has the right to give or take life. Birth and death are the mercy of the creator and thus the belief that there is no place for mercy killing or PAS in Sikhism. The Gurus tackled the problem of sickness and suffering by providing medical relief and alleviation of pain. Buddhism For Buddhists, as the first precept is to refrain from the destruction of life, including oneself, suicide is clearly seen as a negative form of action. Buddhism in its various forms affirms that while suicide as self-sacrifice may be appropriate for the person who is an Arhat (spiritual practitioner who has realized certain high stages of attainment), one who has attained enlightenment, it is still very much the exception to the rule. “Intentionally bringing about the untimely death of a human being, even if it is still a foetus, is (an offence of Defeat.).”
“It is noteworthy that even praising death or assisting death out of compassion, that is, euthanasia, is still considered a Defeat for a bhikku” (Bhikku – a Buddhist monk or a layperson who has taken vow to lead a life of virtue, a Buddhist religious devotee).
Jannism
Page | 130 Jainism is one religion that permits suicide with restrictions. Jain Munis and other elderly people have been known to starve themselves to death, although there is no record of application of any other violent means due to heavy insistence on non-violence.
7. LIMITATIONS
This is a brief communication on this huge topic and in no way draws conclusions of legalizing euthanasia and PAS in India or elsewhere.
8. CONCLUSION
There has always been and will always be arguments among people who will support and be against the idea of euthanasia and PAS. People argue that hospitals do not pay attention to patients’ wishes, especially when they are suffering from terminally ill, crippling, and non- responding medical conditions. This medical culture is bound to change with the new laws, which might be implemented if the PAS is legalized. This issue is becoming more and more relevant to the psychiatrists as they need to deal with mental capacity issues all the time. There is a need for empirical research on the topics of perceptions and attitudes concerning euthanasia and PAS in India among large numbers of professionals and general public to draw meaningful conclusions on the need to legalize euthanasia and PAS or not.
SMELL MARK – NEED FOR REFORMATION AS A TRADEMARK 199 Adhithyan.c
Abstract
199 Adhithyan.c, 5th year B.A.LL.B (HONS), The Tamil Nadu Dr.Ambedkar Law University (School of excellence in law), Page | 131 As science developed, the need for publication of knowledge became inevitable. Intellectual property refers to certain kinds of exclusive rights to intellectual capital, some forms of which can expire after a set period of time, and other forms of which can last indefinitely. The development in intellect enabled the person to notify his brand for their own development. Trademark is one form as such to determine the belongingness of a product to a specific person or a company. That enables the customers to differentiate their favorite product from that of all others. This distinction is made marks or color or sound or even smell. All the difference made for the distinction is perceived by senses, in the same way, the distinction made through the sense of smell is also considered as a mark. But in the real sense of smell is something different than that of the other senses. It is uncontrollable, that is a particular smell according to a wish of a person cannot be inhaled. Also, it not only does the job of distinguishing the products when something is smelt it has an effect on the mental as well as physical condition of a person. In this paper the author discusses deeply the effects of smell, raises few questions regarding trademark and competency of smell mark as a trademark, and at last, gives few suggestions regarding smell mark.
Keywords: intellect, brand, smell mark, competency
Introduction:
Intellectual property is one of the growing fields in the family of law. As far as human beings are imbibed with intellect within them, there shall be the need for the intellectual property act. The term intellectual property refers to loose cluster of legal doctrines that regulate the use of different types of ideas and insignia. Intellectual property denotes the right over a tangible property whose mental effort created it. Some of the Common types of intellectual properties are patent, Copyright, Trademark and trade secret. Trademarks are distinctive names, phrases or
Page | 132 marks used by a customer to identify their favorite product. It gives an indication to the purchaser regarding the product which he is about to buy. The trademark according to the law can be represented by any figure, color or mark or it can also be represented by non-conventional marks such as sound, shape, or smell. The requirement of a trademark increases parallel with that of the increase in the number of companies or industries. There is a well-established statute for a trademark. In India, we follow Trademark act 1999. Trademark act clearly depicts the requirements, procedure, infringement and the remedies for passing off for a trademark. A smell mark is considered as a non-conventional trademark. But unlike other marks smell is quite exceptional, as it is not an ordinary sense. There is a lot lacuna in respect to that of smell mark. It is in quiet detail dealt in this article with two research questions.
TRADE MARK
The concept of trademark dates back to ancient times. Even in the Harappan civilization marks of trade with foreign countries such as Mesopotamia and Babylonia were found embossed on articles. The function of a trademark is to give an indication to the purchaser or possible purchaser as to the manufacture and quality of the goods.
Trademark recognizes and enforces an important intellectual property right. Trademark means a mark capable of distinguishing goods and services of one person from those of others. The TRIPS agreement has given a similar definition for what all could be capable of constituting a trademark. The agreement says-
“any sign or any combination of signs, capable of distinguishing the goods or services of one
200 undertaking from those of other undertakings shall be capable of constituting a trademark”
The community trademark, which covers the whole region of European Union defines trademark as any sign capable of being represented graphically, which can differentiate between one kind of goods and services of one undertaking from similar kind of goods and services from another undertaking.201 Meanwhile, laws on the trademark in the USA trace its origin from a set of
200TRIPS AGGREMENT, art 15 (1). 201 Seville c, trade mark law: the community’s thinking widens and depens,53 international and comparative law quarterly, 1013(2004). Page | 133 statutes which defines trademark similarly.202 It is also used as a way of protecting customers. This is because the customers need quality products, and the quality products can be recognized by the trademark that the product holds. Trademark can also be used as another word for brand or brand name. The trade is also recognized by law, and punishment is given, when infringed. The rationale behind it was that otherwise, it may lead to fraud being committed against the
203 public.
A trademark is the property of the manufacturer. The purpose of a trademark is to establish a connection between the goods and the source thereof which would suggest the quality of goods. The distinction between the trademark and the property mark is that whereas the former denotes the manufacturer or the quality of the goods to which it is attached, the latter denotes the
204 ownership in themselves, while a property mark concerns the proprietor.
OLFACTORY MARK:
Madrid protocol,205 was silent on the issue of subject matter for registration of the trademark. So what could be registered and protected, what couldn’t be dealt with this international agreement. Then in the Paris convention206 the relevant provisions says “the condition of filing and registration of trade mark shall be determined in each country of its union by domestic legislation”207 this gave all the domestic countries to make laws that are in relation to the definition of trademark or signs, that on their discretion they would have included or excluded the non-conventional marks from protection. The trademark law treaty which was signed at Geneva in 1994, is the only international treaty which has made an explicit exclusion of sound and olfactory marks from getting registered as a mark.208 At last TRIPS agreement in 1994 kept its stand neutral by making the provisions that the contracting parties may provide that only
202 Federal trademark law [15 U.S.C. 1051-1127 (1994)] and Lanham trade mark act of 1946 [15 S.C. 1052(e), f] 203 BENTLEY LINOEL & SHERMAN BRAD, INTELLECTUAL PROPERTY LAW, 75 (New Oxford University Press 2001). 204Sumat Prasad Jain v. Sheojanam Prasad, AIR 1972 SC 2488. 205 Protocol related to the Madrid agreement concerning the international registration of marks adopted at Madrid on 27 June 1989. 206 Paris convention for the protection of intellectual property on 20 March 1883, as last amended on 28 September 1979. 207PARIS CONVENTION FOR THE PROTECTION OF INTELLECTUAL PROPERTY Art 6 (1). 208TRADE MARK LAW TREATY 1994, art 2 (1). Page | 134 visually detectable signs and marks should be made eligible for getting legal protection.209 The use of the word may clearly cannote that the non – conventional marks, which are not visually detectable are not prima facie ab initio excluded from the scope of the scope of this agreement. So we can say that the sound, taste and smell can still be covered under this international agreement based on the intention and willingness of the contracting parties.
In India, “Trademark has been defined as a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging and the combination of colors”.210 The word ‘mark’ has been defined in the statute as well and it includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colors or any combination thereof.211 Like all non-conventional marks, smell marks also can be granted protection provided the applicant is able to represent the mark. The representation of the smell mark is difficult. In order to register a smell as a trademark representation should be precise. The smell sought to be registered should be distinctly represented and should not be one
212 that emanates from the product.
Sieckman case213 was for trademark protection sought for the olfactory mark deposited with the office, of the pure chemical substance methyl cinnamate ( Cinna,ic acid methyl ester), whose structural formula was also given. An odor sample of the sign in a container was also submitted and it was stated that the scent was usually described as ‘balsamically fruity with a slight hint of cinnamon’. The question was whether graphical representation requirement was satisfied by a chemical formula or by description or by a chemical formula or by means of deposit or by a combination of the surrogate reproductions. The court disregarded chemical formula as an adequate representation as few people may recognize such a formula the odor in question. Such a formula is not sufficiently intelligible. A chemical formula cannot represent the odor of a substance nor is it sufficiently clear and precise but it represents the substance as such. It is, therefore not a representation. In respect to the description of a smell although it is graphically
209TRADE RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS 1994, art 15. 210 Trade marks act 1999 s 2 (1) (zb). 211 Trade marks act 1999 s 2 (1) (m). 212 ELIZABETH VERKEY, INTELLECTUAL PROPERTY, 162-163 (1 ed. Eastern Book Press 2015). 213Ralf sieckman v. Deutsches Patent and Markenant, 2002 ECR I – 11737: 2002 All ER (D) 185. Page | 135 represented, the court found that it is not sufficiently precise, clear and objective. As to the deposit of an odor sample, a chemical formula cannot be considered as a graphic representation. Moreover, an odor sample cannot be stable or durable for a long time period. Thus in respect of an olfactory sign, the requirement of graphic representation is not satisfied by a chemical formula or by a description in a chemical formula, by a description in written words or by a deposit of odor sample or by a combination of those elements. India follows that of the sieckmann’s case.
But however the first of the non- conventional mark registered was that of the registration of the sound for Yahoo under the trademark act, 1999.214 Meanwhile, the Delhi High Court also gave the protection for the shape of the Zippo lighter which is also a non-conventional mark.215 The biggest drawback in India regarding the usage of smell mark is that the representation of the smell graphically is very difficult as that of the sieckmann case. But anyway at the end they are a subject of the trademark if represented graphically.
The wonder of smell
Smell is one of the five senses a human have. It absorbs as much as what it can. With the help of smell we can experience the pleasant as well as unpleasant things. A person can be disabled of any sense, such as he can be blind, deaf or dumb but can never lose the sense of smell. This brings out the importance of the sense of smell. People interact with the world through sights and sounds, live largely through their eyes and ears. Recent researches have shown that responding is done both consciously and subconsciously, to the odor as well.
An individual’s sense of smell results from stimulation of olfactory glands, at the top of the sinus cavity, which directly triggers the olfactory bulbs in the limbic system of the brain.216 While odor may evoke a conscious evolution in the cerebrum, this is not required: the olfactory glands
217 can do directly trigger both memory and emotional responses.
214 Manoj P, Yahoo, Awarded India’s first sound mark: Nokia in queue, Live mint, 7 (2008). 215Zipo, IA 7356/2006 (Delhi High Court). 216 Gibbons B, The Intimate Sense of Smell, National Geographic, 9 (1986) 324-61. 217Engen T, odor Sensation and Memory, (praeger Publication) 1991, 5. Page | 136 This is a sharp contrast to other four senses as they all stimulate areas of the cerebrum and, and requires a conscious evaluation to produce a response.218 Thus the sense of smell has a very privileged and intimate influence over what one does and how one is lived. It can also be understood from the fact that feelings, either positive or negative, about people, places and things may well be determined by how they smell, and this is, in fact appears to be so whether or not
219 there is so conscious of their odor.
An odor is caused either by a single chemical component or by a mixture of components. And also an odor does not be the same to all and also it causes a different effect to some. A person’s ability to smell a particular smell may vary sometimes. And some at times don’t smell or cannot notice a smell while others can be influenced be those odors. This may be due to various reasons, some of the facts that affect a person’s sense of smell may also include age, whether or not he smokes and also sex. An odor may also have a different effect on different person’s, an odor which one thinks pleasant may not be pleasant to the other. As an example, we can consider the smell of the bakery which few likes will not be the same to the persons who work there or also will not be the same to the persons who live near the bakery. One more example can be said regarding the people who work with that of the garbage may not notice the smell of the garbage
220 which may be stringent to all others.
Trade mark - To Distinguish or to Attract?
We can find that the smells are not the same as that of the other senses and the smell mark is also not the same as that of the other non-conventional marks. Here, on considering the above
218 Fox K, Social issue research centres,the Smell Report, (dec 4, 2018, 00:30 AM),https://www.sirc.org/ publik/smel.pdf . 219 Herz R S, Do smell affects people’s mood and work performances?,science America ( Dec 4, 2018, 01:20 AM), https://www.scientificamerica.com/article/do-scents-affect-peolples-mood-and-working- condition/. 220 Department of health, odors and health, new York state ( dec 07, 2018, 01.54 AM), https://www.health.ny.gov/publications/6500/index.htm. Page | 137 aspects, we can find that smell is not the same to every person and differs from person to person. Also, a smell not only gives a sensory effect but also either attracts or repeals a person. In this case, a trademark acts as an attracting agent, i.e rather than only distinguishing a product also acts as a marketing agent for that product by its attractive smells. Here the first research question arises of “whether a trademark is to distinguish a person’s product from that of another or a trademark can also be used as an attracting agent?”
A trademark is the name, symbol figure, letter, form of device adopted and used by the manufacturer or merchant in order to designate the goods that he manufactures or sells, and to distinguish them from those manufactured or sold by another, to the end that they must be known in the market as his, and thus enable him to secure such profits as result from a reputation for
221 superior skill, industries or enterprise.
A trademark is some symbol consisting of something which is applied or attached to goods of a trader so as to distinguish them as his from similar goods or other traders, and to identify them as his goods or as those of his successors in the business in which they are produced or put forward for the sale. It is the adaption or use of trademark which gives a title to it. As soon as a trademark has been so employed in the market to indicate to the purchasers that the goods to which it is attached are the manufacture of a particular firm. It becomes to that extent the property of the
222 firm.
A three-judge bench of Supreme Court of India has observed that the concept of a trademark is distinct from that of that of a property mark. A mark includes a device, brand, heading, label, ticket, name, signature, word, letter or numerical or any combination thereof. A trademark means a mark used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some persons having the right as proprietor to use that mark. The function of the trademark is to give an indication to the purchaser as to manufacturer or quality of the goods to give an indication to his eyes of the trade source from which the goods
223 comes, or the trade hands through which they pass as their way to the market.
221 P. Ramanath Aiyar, the law lexicon,1908,(1997), 222 Firm Koonerji Bechari Lal v. Firm Adam Hazi Pir Mohammed AIR 1994 Sind 21. 223Sumat Prasad Jain v. Shejanan Prasad and State of Bihar AIR 1972 SC 2488. Page | 138 A trademark is a symbol which is applied or attached to goods offered for sale in the market. So as to distinguish them from similar goods, and to identify them with a particular trader or with his successor as the owner of a particular business, as being made, worked upon, imported, selected, certified or sold by him or them or, which has been properly registered under the acts as
224 the trademark of a particular trader.
A trademark is a mark used or proposed to be used in relation to gods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some
225 persons having the right to use the mark.
These judgments explicitly prove that a trademark is used for indicating a specific person’s product from that of another person manufacturing the same kind of products, and to indicate the customers which is the product of the specific company. But the effects of smells mentioned earlier clearly says that smell can’t last for a long time, it does not remain the same for all the persons, and ultimately it affects a person’s mental condition while smelling the product. It attracts the customer rather than indicating the trademark. In this sense of argument considering smells as a trademark is not valid within the legal aspect of trademark.
Not only the Indian law but even the TRIPS agreement226 and Lanham act clearly depicts that a trademark is to differentiate a person’s mark from that of another. In all the above statutes we shall use the maxim “expression unius est exclusion arteries” as the principle of interpretation as the object is expressly mentioned. In a court of law, what is unexpressed has the same value of what is unintended.227 Hence, a construction which requires for its support addition or
228 substitution of words or which results in rejection of words has to be avoided.
Health effect of odour
224M.R.Verma v. William Hallins and Co. Ltd AIR 1947 Lah 29. 225 Indo- Pharma Pharmaceuticals Works Ltd v. Citadel Fine Pharmaceuticals Ltd AIR 1988 Mad 347 226Supra 1. 227Venkataramanna Dewan v. State of Mysore AIR 1953 SC 255. 228Grasim Industries Ltd v. Collector of customs, Bombay (2002) 4 SCC 297. Page | 139 We breathe 10,000 to 20,000 of liters of air daily, mostly through our nose. It not only helps in distinguishing the smell but also affects a person either mentally or physically. The olfactory system comes in contact with a different variety of concentration of odor every day. Odor can alert people that something may be harmful, but generally, you can smell many chemicals before they are at levels that are harmful to your health. For example, we are able to smell hydrogen sulphide (H2S) which smells like rotten eggs, at very low levels; levels much lower than those at which chemicals can cause toxic health effects. Odors effects are of two types, it shall generally have an effect on the health as well as the mental condition of a person.
• Can health problems be caused by odor? A certain group of chemicals that produce odor may certainly cause health problems. These health problems may not be the same for all. Just because something smells bad, it does not cause health problems, example: rotten eggs. Some harmful or deadly chemicals can have a mild or sweet chemical odor like benzene, or no odor at all like carbon monoxide. Hydrogen sulphide (H2S) smells like rotten eggs. The level at which you can smell hydrogen sulphide is approximately 1.0 micrograms per cubic meter. It has been found that there is no harmful effect of being exposed to H2S at that concentration level. The level that is considered to be harmful to public health and environment for H2S is 50 micrograms per cubic meter. What this means is there is no harm caused and one can smell H2S at that concentration lower than that which is harmful.229 Exposure to an odor can cause from no effect to moderate discomfort to serious effects. A strong odor of few chemicals may cause eye, throat or even lung infection subject to each person’s immunity. Sometimes strong odor may also cause a burning sensation that may lead to wheezing, coughing or other breathing problems. Some strong odor may cause a severe
230 headache, it can also affect a person’s anxiety, mod and stress level.
• Mental effects of odor:
229NH Department of Envionmental Health, odors and your health, (dec 07, 2018, 03.15 AM), https://www.des.nh.gov>ard>ard-ehp-24. 230supra 20. Page | 140 Rachl S. Herz, an assistant professor from the Brown University, explains that smell surely affects the mental condition during work or other behavioral aspects. He also says that this is not due to the effect of smell as a drug in a person but because of a person’s experience towards a particular smell. That is for an odor to elicit some response on a particular person he at first should have had some experience on that particular smell. It is clear from this that not all will have the same experience towards a particular smell.
Where a mark breaches its limit:
Being a trademark it should do its main job to distinguish a product from that of other products. But the smell is something more which cannot be indulged to only distinct a smell. A smell cannot be filtered before we react to them, unlike other senses such that of sound, sight, taste and touch which can be filtered before reaction. Since smell is not filtered we cannot stop our reaction towards it. For example a condition of a passive smoker, where he is been imbibed to smoke in spite of his unwillingness to smoke. Can a trademark as such cause discomfort to a person in any cause? Discomfort is not only an annoying smell, but also a smell which smells good but affects your health. A smell can cause comfort to a person but at the same time it can cause discomfort to the neighbor. At times smell can also be deadly. A lot of smells that we are used to are less in concentration, the same when were in high concentration affects a lot. Some of the best example chemicals are, strychnine, tabun – which is known for its fruity odor, 2,3,7,8 - tetrachloridobenzo-p-dioxin which is known as orange agent. These chemicals smell good but are quite deadly in nature. In this condition, few smells may act as a catalyst towards death. Also, we don’t have any special regulations to regulate smells.
Conclusion and suggestion
These questions of whether a smell mark is to distinguish or to attract? And can a trademark cause discomfort to a person? Has been the main research questions which are not yet been answered by authorities explicitly. Smell mark is not unrecognized in India but, there is not yet a smell mark recognized. The object of a trademark according to comparative statutes is mainly to distinguish a person’s product from that of another person. There is no regulation regarding smell mark. Allowing a smell without testing or regulating may lead to a deadly situation. Lack in legislations as these are lacuna in the further development of smell marks. Unless there are Page | 141 few reforms regarding the smell marks are made the further process may be risky. Environment law provides for the control of air pollution but it does say nothing about marks. Representation of smell mark graphically is nearly impossible. In order to tackle these obstacles, there should be some regulations, few are
Law:
An amendment or an interpretation regarding the definition, object, scope of trademark and smell mark clearly indicating it is to be clearly made in order to dissolve the doubts regarding it.
Multidisciplinary approach:
Law is a subject of multidisciplinary it can never be understood without the help of other subjects. In the same way, a smell mark cannot be an individual subject. The law regulating smell mark regarding its concentration, chemical components that can be used and other necessity should be formed imbibing Aramachology within it.
Importance:
Importance of smell in IP should be depicted to the students in India. Only a very few were interested in aramachology, this study should be popularized in India. Much research regarding the graphical representation of smell is the need of the hour.
These few changes are just the suggestions if further better changes are bought into action, it can trigger growth in smell marks not only in India but throughout the world. A new phase of the trademark can be initiated in the near future.
1. INTRODUCTION
Page | 142 In the contemporary world, issues related to mental health of an individual are becoming quite relevant. As the human civilization is advancing from a limited rural era to an evolving technological era, the human mind is constantly exposed to new conditions and adaption and as a result various psychological changes are experienced by people. But there are places on earth where people are still stuck in the past and which have not yet evolved their thinking according to the current scenario and still live by the cultural norms set by the predecessors, both good and bad. As a result, the people living in these societies are not aware of the ways of the contemporary world and their thinking is limited to only one direction which they consider it as the absolute truth without any rationale. They adhere to these norms because of fear of their reputation in the society in which they live. The people in these places live in misery and doubt as they are not allowed to question the persisting norms and are victims of irrational hegemony. These societies are prevalent in major parts of the world and even in self acclaimed democracies.
According to the World Health Organistaion (WHO), “Mental health is defined as a state of well-being in which every individual realizes his or her own potential, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to her or his community.”231 In this era of globalization and a fast moving society the issue of mental health has become much more prominent than it was considered in the previous times. Mental health includes all the aspects of emotional, psychological and social well-being.
1.1 Mental health of women in India
The constitution of the World Health Organization (WHO) clearly lays down an obligation on all the states to ensure the fulfillment of the highest level of health attainable by all the people. This definition has been broadened in contemporary times with mental health falling within the purview of the aforementioned definition.232 India is a signatory to the Alma Ata declaration (1987) which clearly lays down the principle that health includes the social, emotional and
231World Health Organisation, Geneva, Summary report on ‘Promoting mental health: concepts, emerging evidence, practice (2004)’, available at https://www.who.int/mental_health/evidence/en/promoting_mhh.pdf (last accessed June 3, 2019). 232Galderisi, et. al. “Toward a new definition of mental health”, World psychiatry: Journal of the World Psychiatric Association (WPA), Vol. 14, No.2, June, 2015, pp.231-233, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4471980/ (last accessed June 3 2019). Page | 143 mental well-being of all persons and not just being free from any disease or infirmity.233 India also has included the right to health within Article 21 of the constitution.
In the case of Vincent v. Union of India234, the Supreme Court has clearly mentioned that a healthy body is the very foundation of all human activities. Mental health has become a major constituent of the Right to health, since without a healthy mind there can never really be a healthy body. Mental problems in daily life always lead to greater health hazards and endanger the well-being of an individual on a long-term basis. We are facing a global human rights emergency in the field of mental health. No doubt that the access to healthcare facilities has been improved significantly, but the access to mental healthcare facilities remains to be quite substandard.
This situation is only intensified in the case of women especially in a patriarchal society. A patriarchal social system could be defined as the one in which the male is in authority over the women in almost all the aspects of the society and women are considered to be inferior and submissive to the wishes of the male members of the family. According to the Indian journal of psychiatry, women have a higher mean level of mental disorders as compared to the Indian males. 1.1.1 Causes of adverse mental health of women in India
Various factors and interplay between them result in the mental health issues of women in a patriarchal society. Issues like rape, domestic violence, marital rape, stalking, and voyeurism; act as the catalysts of escalating the mental health of women in the patriarchal societies. These crimes clearly suggest the male chauvinism and the overpowering dominance of the males where they can commit these crimes without fear of being convicted easily. In spite of the fact that there have been several legislations introduced to curb all these menaces like the Protection of women from domestic violence act 2005, Criminal law amendment act 2013 to name a few; the implementation of these legislations and the ground reality of the protection of women from the above mentioned crimes and also the mental health of women in the Indian society seems to be
233 Anvar Sadath, et. al. “Human rights violations in mental health: a case report from India”, Journal of psychiatry, Vol. 17, No. 3, May, 2014, pp. 13-19, available at https://www.omicsonline.org/open-access/human-rights-violation-in-mental-health-a-case-report-from- india.php?aid=27210 (last accessed June 3 2019) . 234Vincent Panikulagara v. Union of India, (1987) 2 SCC 165. Page | 144 grave as even though these legislations have been introduced and the law enforcing agencies are doing their best to implement these laws. This can be substantiated by the statistic that 3,38,954
235 cases were registered for various crimes against women all across the country.
The crime of rape can lead to serious mental issues of which suicidal behavior is the most common. In a study of raped school girls, 6%236 reported having attempted suicide as the rape- victims feel embarrassed to talk about what had happened to them; the pressure of the society talking about it, and handling the emotions becomes almost impossible leading to suicidal behavior in age as early as adolescence. To add to the fact the problem of marital rape is one of the gravest issues that adds fuel to the fire of the mental health issue of women in the patriarchal society and India does not have any legislation to address this issue. The patriarchal construct of the Indian society has indeed produced multifarious and complex problems both physical and mental for women. Rape and other forms of sexual assaults can lead to psychological, mental and social effects which include the problems of acute depression, anxiety, eating disorders, neurosis, chronic disorders and suicidal behavior as already mentioned above. Depression is the most major mental problem that women are facing currently in the nation. It is prevalent among women of all age groups, however women of 40-49 years are predominantly prone to the problem of depression237 is to be second leading source of disability all over the world by 2020. No doubt that due to the various activists’ groups fighting for the rights of women both at the international and the national level these legislations was enacted to secure the rights of the women. The crimes can take a heavy toll on a women’s mental and emotional state and if we add that up with the problems related with the dispensation of justice the situation only worsens for the women. Therefore, it can be said that it is indeed the slow dispensation of justice that worsens the mental health of women. A number of women’s mental health problems in India are strictly of a gender origin and affect all the sections of the women irrespective of their material status and awareness.
235 National Crimes Records Bureau, Report on ‘Crime in India (2016)’ available athttp://ncrb.gov.in/StatPublications/CII/CII2016/pdfs/NEWPDFs/Crime%20in%20India%20- %202016%20Complete%20PDF%20291117.pdf (last accessed 4 June 2019). 236Bohra, Neena et al. “Depression in women in Indian context”, Indian journal of psychiatry, Vol. 57, No. 2, July, 2015, pp.239-245, available at http://www.indianjpsychiatry.org/article.asp?issn=0019- 5545;year=2015;volume=57;issue=6;spage=239;epage=245;aulast=Bohra (last accessed 5 June 2019). 237Ibid p. 243. Page | 145 2. MENTAL HEALTHCARE ACT 2017
2.1 Introduction to the act
On March 27, 2017, The Lok Sabha in a unanimous decision passed the Mental Healthcare Act, 2017 which was passed in Rajya Sabha on August 2016 and got its assent by the President of India in April 2017. This new act defines “mental illness” as a substantial disorder of thinking, mood, perception, orientation, or memory that grossly impairs judgment or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs.”238 This act has changed the provision of the section 309 of the Indian Penal Code and decriminalized attempt to suicide by a mentally ill person. This act also provides for the ample provisions dealing with the treatment of mentally ill people and the facilitating the access to the
239 treatment of mental healthcare.
The Mental Healthcare Act 2017 has been one of the primary efforts to address the mental health issues of the citizens of India. In the act it has been clearly directed that the appropriate government should take all reasonable steps to plan, design, implement and also to ensure the
240 promotion of mental health and prevention of mental illness in the country.
It has also been mentioned in the act that “women’s personal hygiene be adequately addressed by
241 providing access to items that may be required during menstruation.”
However, the unfortunate truth is that there is a wide difference between the idealistic expectations and the reality and the implementation of the provisions of this act. Often in the news we have heard that in many regions of our country, menstruation is considered as a taboo which calls for the total alienation and isolation of the women from most social affairs during the time of their monthly menstruation cycle.
Quite recently it could be recalled that some women from the rural areas of Karnataka were subject to isolation and forced to leave their homes because their menstruation was considered to 238 “What is mental healthcare Bill?”, The Indian Express, March 28, 2017, at p. 11. 239Rao, Gundugurti Prasad et al. “Mental Health Care Bill, 2016: A boon or bane?”, Indian journal of psychiatry, Vol. 58, No. 3, October, 2016, pp. 244-249, available at http://www.indianjpsychiatry.org/article.asp?issn=0019- 5545;year=2016;volume=58;issue=3;spage=244;epage=249;aulast=Rao, (last accessed 5 June 2019). 240 The Mental Healthcare Act, 2017, s. 29(1). 241 Ibid, s. 20 (2) (h). Page | 146 be impure for the holy festival of Diwali; many such incidents come into the attention of people from different parts of the country but they still prefer to passively accept the predicament of women in the rural areas. When this matter is put into objective analysis it can easily be said that these incidents can put a profound impact on the mental health of women as there is no one to support their necessities at the time when they need it the most. 242 Even the older women of that area have over the due course of time accepted the fact that this is customary and common and don’t allow any deviation from this suppressing custom.
Thus, there is a need of consistent efforts to shape and change the act in order to provide a redressal mechanism for the mental healthcare problems of women throughout the country so that the act does not remain a mere platitude without any substance but actually fulfills the mental health problems of both men and women in an equal manner and therefore, the implementation of this act should be such that women should not have any difficulty in order to access the mental healthcare facilities provided by this act. 2.1.1 Critical analysis of the act
There is fittingly a responsibility on the government to ensure the satisfactory infrastructural facilities in order to make certain the implementation of this act, which benevolently aims to rehabilitate and benefit countless number of people suffering of one or more mental diseases. This aspect can be critically observed in the fact that there are just 40 proper institutions for the mental checkups of the population and only around 26,000 beds for accommodating the needs of almost 1.3 billion people.243 A report from the WHO suggests that there are barely 3 psychiatrists per million people in our nation.244 These statistics, indeed tells us the entire story as to why the people of India are suffering from the heightened mental problems. It can be said that women are the worst affected because of the fact that they won’t acknowledge any mental problem, since the social construct of the Indian society won’t allow them to do so. Therefore, through the research
242 “For some in Karnataka, Diwali brings with it isolation and fear”, Hindustan Times, October 19, 2017, at p. 5. 243Abhisek Mishra, Abhiruchi Gilhotra, “Mental Healthcare Act 2017: Need to wait and watch”, International Journal of Applied Basic Medical Research, Vol.8, No.2, October, 2018, pp.67-70, available at http://www.ijabmr.org/article.asp?issn=2229- 516X;year=2018;volume=8;issue=2;spage=67;epage=70;aulast=Mishra, (last accessed 6 June 2019). 244Ibid p. 68. Page | 147 and analysis it can be said that there is a long way to go in order to implement the infrastructural aspect of this act.
There is additionally a need to rethink the arrangements and the provisions of the act and break down the objective and empirical gatherings of mental health issues. The objective gatherings suggest that majorly the victims of mental health issues in India are women and children. There is no denying the way that the Indian culture and the profoundly understood idea of male pride has made women generally a victim of different emotional as well as mental wellness issues. 2.2 Suggestions to improve the act The Mental Healthcare Act, 2017 provides ample of opportunities for women to recognize and claim their rights and have mental care for themselves. The real problem is women are not aware of these rights which are primarily bestowed for their mental and physical well being. It is very important for the government to promote mental health and preventive programs, create awareness about mental health and illness and reducing stigma associated with mental illness, appropriate government to take measures as regard to human resource development and training, co-ordinate within appropriate government etc. The government should take the help of social media platforms and other sources to spread awareness of these rights in each and every part of the country. Along these lines, as a piece of a suggestion of this research, keeping in mind the present status of the mental health issues, there is every need to include various provisions that deals with the treatment of women suffering from mental issues. Ensuring facilities for the mental treatment of women will well and truly be one step further in providing stimulus and instilling confidence amongst the women to be catalysts of social change, and thereby, suppress the ideology of male dominance in the Indian society which has since quite a while enslaved them.
3. CASE STUDIES Case study of Rajasthan
The state of Rajasthan, which is popularly known as the ‘land of the Kings’, is the true embodiment of chivalry. It is also a predominantly patriarchal society where the customs, traditions, practices and the usages passed through countless generations have entrenched the culture of extreme male dominance and of discrimination against women. This discrimination
Page | 148 shows for the troubling statistics, for Rajasthan has the largest number of females married within
245 the ages 10-14 and has the lowest child sex-ratio across the country.
Vimla, 25, of Manaklav village in Jodhpur, bore through her third pregnancy in the same number of years in a state regularly serious, of nervousness, trusting and appealing to God for the introduction of a male youngster. The result of the two past pregnancies-the two young ladies had prompted her extreme mental and physical torment on account of her husband and in-laws. So when Vimla delivered her third young girl child, she was absolutely caught off guard for what was to pursue. No one could have envisioned its seriousness: a moderate and constrained
246 disavowal of sustenance to her and her kids.
This case ordinarily demonstrates the reasons for psychological instability in the state of Rajasthan, that ladies are inclined to when they neglect to satisfy and disguise the desires for the male individuals in the male centric social orders. Uneasiness, severe anxiety, anorexia nervosa and severe mental disorders are a portion of the other dysfunctional behaviors that harrow
247 women in Rajasthan.
The demand for dowry in the state of Rajasthan has been relatively high in the year 2016 as compared to the other states. With 462 cases registered for the crime of dowry deaths248, the state of Rajasthan is involved in a crisis of still controlling dowry deaths, which affects the mental health of women adversely. The demand for dowry, is a punishable offence, and was prohibited by the Dowry Prohibition Act 1961. The crime of dowry affects the mental health of not only the women but also the respective families of the women married and also it affects the mental health of women both before and after marriage; since women are subjected to torture, verbal and physical abuse by her husband and his family in such cases.
As of 2016, Rajasthan ranks 5th on the basis of the crime rate against women, the statistics of cruelty by husband or his relatives in Rajasthan are indeed astonishingly high with around 13,811 cases registered in the year 2016, ranking 2nd only behind the state of West Bengal in the
245Census of India, Report on ‘Census 2011’, available at https://www.census2011.co.in/, (last accessed 7 June 2019). 246 Gupta, et. al. “Health of Women and Children in Rajasthan”, Economic and Political Weekly, Vol. 27, No. 42, October 1992, pp. 2323-2330, available at https://www.jstor.org/stable/4399031 (last accessed 7 June 2019). 247Supranote 13. 248Supra note 5. Page | 149 number of incidents registered under this category. The statistics of rape also remain to be seriously concerning in Rajasthan, with 3657 rapes, including 366 Gang rapes registered in 2016 under the Indian Penal Code.249 These barbaric acts visibly show the inability of the law enforcing agencies in Rajasthan to protect the rights of women members of the society. This proves that the mental health of women in Rajasthan is seriously a concerning issue because of the male bigotry practiced on such a large extent in the state. This reasonably displays the subjugation of women and their rights by the male members of the patriarchal society.
However, through critical analysis, one can also figure out that in a male dominated society, certain crimes committed within the marriage, go unreported, since the women consider that to fulfill the wishes of the husband is simply a role expectation in the society. Therefore, the statistics do not completely reflect the true picture of the crimes committed against women and their mental health affected thereupon.
While there are no precise examinations which are done on this piece of women's mental well- being, the recurrence of sexual and physical viciousness practiced by the male members against the women, including domestic violence like wife-beating seriously influences the mental health of women in a negative manner. The overwhelming truth of the situation is the huge shortcoming and non-presence of any openings for the Self Expression of women as the gender roles define the conduct of women to be weak and submissive to the wishes of the male members of the
250 family.
Therefore, the situation of mental health in the state of Rajasthan requires a lot of improvement on the part of the law enforcing authorities and also on the personal level by the educated class of individuals whose responsibility is to sensitize and increase the awareness of women in regards to their rights and their mental health.
Case study of Haryana
249 Ibid. 250Supra note 16. Page | 150 Haryana, which is a prominent state in India, located near the NCR region has a history of crimes against women. From decades, the communities in Haryana have been following male chauvinistic ideas which led women to an inferior position in their society. Grave crimes like rape, female infanticide, and domestic violence are prevalent in the rural parts of Haryana. There exist rights relating to ownership of land, property, assets and economic independence of women but the customs and norms followed by the general folk there disable women from exercising their rights. According to their traditional and cultural norms, women are considered to be the property of men; a woman has to follow the commands and decisions of her husband blindly. According to the National Family Health Survey-3 of 2005-06, 27%251 of all married women in Haryana have experienced physical, emotional and sexual violence. The sad part is that these norms are considered normal by both males and females in Haryana. The women who are subjugated to violence have accepted their fate with the support of irrational ideologies like whatever a man does is right for a woman or a man only punishes her wife when she does something wrong. However, these false ideologies do not curb the mental and psychological oppression which women go through. These cruelties on a daily basis shatter women from inside and lead them to conditions like chronic depression and suicidal thoughts. Somehow, they convince themselves that they must go through these conditions no matter what they feel. Some of the women take pride in being dominated by their husbands as they perceive this oppression in a rhetorical way: that they are following the ‘norms’ as set by their culture. This factor further contributes to breaking the will of the women, who want to raise their voice against these cruelties and take a stand for themselves.
The justification behind this physical violence can be rarely explained; men beat up their wives for petty issues, in an inebriated state, even for no reason at all and moreover to satisfy their ego that they have superiority over somebody if not over the society at large. In a short span, this becomes a routine and over a period of time, the mental health of women depreciates leading to mental illness which also affects their physical health in a major way. Women keep suffering silently and live their life as a burden.
251Srivastava, Kalpana et al. “Mental health awareness: The Indian scenario”, Industrial psychiatry journal, Vol. 25, No.2, July-December, 2016, pp. 131-134, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5479084/ (last accessed 8 June 2019). Page | 151 In a survey conducted at Kurukshetra, Haryana, most of the women in the rural group except for ten per cent felt that there was complete equality and that they were not aware of any discrimination. According to them, women enjoyed equal status with men. Ninety per cent felt that household work was the duty of women. Only ten per cent felt that men should also help in the household chores. Eighty per cent responded that they were controlled by men in the family, but this was not regarded as an affront to their dignity or restriction on their autonomy of self. On the contrary, this was viewed as protective behaviour which women needed and these
252 respondents felt privileged at the prospect of having such a protection.
About 90% of the women strongly agree that the phenomenon women battering is wrong yet they are afraid to raise a voice against it as the repercussions of the protest may result in divorce which is viewed as a taboo in the Indian society. According to the norms of the society, a women who has been abandoned by her husband has no respect and dignity in the society, so they consider it is better to compromise to the situation and suffer rather than fight for their dignity. Women develop disorders like schizophrenia, depressive psychoses, mania, epilepsy, mental
253 retardation, and organic brain disorders.
Neurotic disorders, major depression, hysterias, obsessive-compulsive disorders, anxieties and phobias, somatisation disorders are classified as being common mental disorders. The degree of cognitive, personal and social impairment is very high in the case of the severe mental disorders. In the case of the common mental disorders, even though personal distress may be very high, there is no complete cognitive breakdown. Often manifestation of illness is physical, such as in hysteria and somatisation disorder. Usually social functioning is seriously impaired, and family
254 discord and maladaptive family interactions may be common.
Another thing to notice here is that a child’s mind is a clean slate on which things which he/she observes, sees and hears gets printed. A major drawback of not raising your voice in this
252Ibid p. 132. 253Bhargavi V. Davar. “Mental Illness among Indian women.”Economic and Political Weekly, Vol. 30, No. 45, November, 1995, pp. 2879-2886, available at https://www.jstor.org/stable/i397126 last accessed (11 June 2019). 254 Ibid. Page | 152 situation is that, the child sees and observes the atrocities done to women and eventually develops a mindset in which this scenario seems normal. Often women are actually encouraging the patriarchal ideology by not raising their voice and making their children accustomed to it. As of the stats are concerned, In 2017, 260 dowry deaths, 996 rape cases, 191 gang rape cases, 17 acid attack cases and 3932 kidnapping and abduction cases were registered in Haryana. On the whole, there has been a 27% increase in crime against women between 2014-15 and 2017-
18.255Women have been resolved to petty objects in the hands of a patriarchal society which constantly keeps them in fear and intimidation.
4. CONCLUSION
India has not yet centered on expansive greatness to encounter the issues related to mental healthcare of the populace everywhere across the country. It should be noted that the idea of psychological wellness was nowhere in the picture until the start of this decade. The idea of psychological well-being is yet to be understood clearly by the masses. The social overhead capital for the treatment of mental wellness of women is still in the underlying and emerging stage and requires time, a lot of finances and devotion to improve the facilities with respect to the treatment of the psychological well-being of women.256 This paper has concentrated on two States of India specifically, namely: Rajasthan and Haryana.
The Mental Healthcare Act was passed in 2017, with the thought to change the enduring conditions identified with mental illness and to improve mental healthcare. The paper has thrown some light on the act and there is no uncertainty in the intentions and the goals set by the law agencies to improve the dimension of mental well-being in the nation, however, as the measurements have appeared there is a desperate need to improve the framework both as far as the material capital and the human capital is concerned.
The report by WHO suggested about the shortage of the psychiatrists and the mental healthcare practitioners and it is the responsibility of the government to look into this problem and figure
257 sustainable solutions for this. 255 “Crime against women on rise in Haryana, rape cases up by 47%”, Hindustan Times, 15 September 2018, at p.7. 256Supra note 8. 257Supranote 13. Page | 153 The statistics of Rajasthan and Haryana in this paper has clearly shown the humongous scope for improvement on the part of the people as well as the law enforcing agencies. As a part of suggestions, by critically analyzing the severe situation of women’s mental health there is a need of firstly controlling the crime rates of Domestic violence, dowry and rape which brutally affect the mental health of women and secondly there is a need of sensitization in both men and women. The sensitization of males in this case is much more imperative as they should be sensitized from their childhood about the concept of gender equality, and the concepts of male dominance should not be imbued in their respective mentalities. The sensitization of women should revolve around instilling confidence among them and increase their faith in the redressal mechanisms. Sensitization and primary education of women would play a huge role in de- stigmatizing of sharing of the problems of mental health. Thus, the sensitization of males and females should go hand in hand. A large part needs to be played by the government in order to reform and change the status quo. Students at school level should be taught about the rights of women. Their mind should be trained to look through the cultural gender biasness and evaluate norms based on rationality rather than just blindly following them. Mental and sexual health should not be portrayed as taboo to the children, instead it should be taught to children during primary school and adolescence.
The government still remains the biggest financer in the field of mental health. The job of the government should not stop only in making the legislations related to countering the problem of mental health but it should also provide finances in order to properly implement those legislations. In the opinion of the researchers a colossal role is also to be played by all forms of media including print, electronic and social media, as in the contemporary Indian society, media is vital in raising awareness of the masses about a variety of issues. It can also be cornerstone in raising the awareness of the people in general and women in particular about mental health. Accessibility to various journals, magazines, reports and various programs both on the Radio and the television in the regional languages by women residing in rural areas, can improve the mental health situation of India in a large way.
It is also the duty of the educated class of both males and females to increase the awareness amongst the less educated class of women about their mental health condition. The various Non- Governmental oraganisations dealing with rehabilitation and empowerment of mentally
Page | 154 aggrieved women in India, like “The Banyan” also need to step in to help the government to improve and uplift the status of women suffering from various mental problems. The Indian society is slowly but surely discovering approaches to improve the psychological state of women, however, in any case, there is still a long way to go before the women can be guaranteed the ideal dimension of mental well-being in a patriarchal society. It must be noted that achieving the optimum level of emotional wellness of women could be accomplished through the collective endeavors of the Government, different NGO's committed to this cause and the people at large.
COALITION GOVERNMENT AND ITS IMPACT ON FEDERAL STRUCTURE
258 By- Amrita Mishra
ABSTRACT
258A student of BBA.LL.B(A), 6th Semester, KIIT School of Law, Bhubaneswar. Page | 155 When two or more governments share their authority over a same geographical area then that is possible because of a political system which is known as federalism. Countries like Canada, the U.S., Australia, India and Argentina are the democratic countries which are governed by federal system.
Basing on the distribution or concentration of the powers between the centre and the state or in the centre respectively the political systems are classified I.e., into federal and unitary forms of governance. In the seventeenth century the word federal was first coined by the Theologians in order to describe the holy system enduring covenant between God and Man. Thus, the concept of federalism is applied to a political system which is characterized by two levels of government deriving the uncontrolled powers and functions from an authority by either level of
259 government.
The term coalition is originated from the Latin word ‘coalition’ which means to go or grow together. It indicates the combination of a number of parts or parts into one body or whole. Professor Ogg defines coalition in the Encyclopedia of Social Sciences, as cooperative arrangements under which distinct political parties or at all events members of such parties unite to form a Government or Ministry.
INTRODUCTION-
Our India consists of a multiparty system where various parties join their hands together and then forms a government. Combination of all parties becomes a single governmental form that is known as coalition government. In fact now a days coalition government has become the crucial and reality form of the Indian political system. Among all the other forms of government coalition is more participatory and responsive in nature. A cooperative and competitive environment has been approached by the coalition politics within the federal structure of India in context of centre and state relations. But on the other hand coalition form of government is very unstable in nature. In many of the cases the national and the regional interest has been hampered in coalitions. Success of coalition completely depends upon the two kinds of the strength that it
260 has I.e., collective responsibility and cooperative attitude.
259Sastry, S. Coalition Government and its Impact on Indian Federal Structure. [online]LegalservicesIndia.com. 260 Banerjee, S. Coalition Politics and Federalism in India. [online] Ijims.com. Page | 156 What actually coalition stands for? It is an vital part of a multiparty system of government where to run the government various political parties join together. Coalition government is considered to be of two types I.e., pre-poll and post-poll. Coalition government and its politics can be tactical where only one party will be having the power and others only supporting the ruling party from outside. This similar situation have been held in the case when the caretaker government of Charan Singh was properly functioning and a outside support was coming from congress and this has been held in 1979. therefore, any contractual agreement or compromise has
261 to be in the root of coalition politics that makes it more stronger.
We have lots of pros of having a coalition government as well which leads to a broader concept where two or more parties have to compromise in order to have a legislation out of policies which will be made by them. But in this form of government one party has to restrain itself from representation in order to pass all the controversial policies which are undemocratic and one of the major cons that we have is when there will be two different ideologies of different parties then conflict will definitely arise which will lead to a fractions government so comparing that
262 coalition government is weak and unstable to same extent.
FEDERALISM-
India is considered to be a federal country as it satisfies all the criteria of being federal. So, basically federalism is a system where dual machinery of the government functions. The dual machinery consists of the centre which looks after which looks after the minor affairs which is in daily basis for a particular region of the country.
NATURE OF THE INDIAN FEDERALISM-
Our constitution has not mentioned the term ‘federal’ but has mentioned it as ‘union of states’, it has provided for a structure of governance which is federal in nature. The constitution has always given the central government with the overriding powers where as the main aim of all the
263 framers of the constitution was to have a cooperative federalism.
261 The Coalition: our programe for government. (2010). HM Government. 262Coalitions NATIONAL DEMOCRATIC INSTITUTE | THE OSLO CENTER FOR PEACE AND HUMAN RIGHTS A Guide for Political Parties. (2015). The National Democratic Institute (NDI) & The Oslo Center for Peace and Human Rights (The Oslo Center). 263COOPERATIVE FEDERALISM IN India.(n.d.). Publius: The Journal of Federalism. Page | 157 It has been observed that national parties are leading to centralization of powers. Since from independence India was ruled under one dominant political party system since 4 decades which was considered as a unitary government. But the regional political parties have played a very productive role in strengthening the process of decentralization of the powers and has greatly
264 contributed in order to breakdown the one party system which was dominant at the centre.
Regional political parties have always placed state in a crucial position on politics and played a major role at the national policies and further the Indian federalism that was working have been federalized. Therefore the role of all the regional political parties during the coalition period of the Indian politics within the government has a impact on the federal system of India.
EMERGENCE OF COALITION GOVERNMENT IN INDIA-
A new proper equation has been brought forwarded by the emergence of coalition politics in which smaller states have found important position in the federal governance. The newly created political arrangement having smaller states with greater political capability in the field of power manipulation which can play a very decisive role in the process of federal. From the functional point of view it can clearly be seen that there have been very sharp changes between the congress and non-congress parties. In most of the cases before the emergence of coalition politics and because the congress was dominating, all other parties both local and regional did not enjoy any influential authority in the total political process. From the year 1967, the fragmentation of all the national party system and the coalition government has been started. Also the new parties were absorped by others. This era of fragmentation and breaking up and absoption of the parties
265 are coming under the emergence of the coalition government.
IMPACT OF COALITION POLITICS ON INDIAN FEDERALISM-
264ibid 265 Khan, M. (2003).COALITION GOVERNMENT AND FEDERAL SYSTEM IN India. The Indian Journal of Political Science, 64(167-190). Page | 158 Coalition politics has always been a matter of fact in accordance with the Indian political system. Indian political system has always been a strength as well as weakness by the coalition government where the impact of coalition politics on Indian federalism has been reflected. Indian government has always gone under the change in its political system from one party system to multiparty system.
As the regional parties have increased their participation in the Indian government various changes has led to the centre and the state and also has impact on their relations. Office of the governor and the increase in the demand for state autonomy are the headings that are discussed under centre-state relations of all the political developments that are going on recently and its impact on the coalition government.
The Indian political party system that has undergone through many different phases like 1952-
266 67, 1967-77, 1977-89 and 1989 onwards.
1959-1967-
During this phase one party dominance has clearly been sited where it has been found that the nature of the Indian federalism was considered to be the centralized federation because all the power was centralized with the one party which was dominant against all. Other parties except the dominant one has raised their voice loud against the centre and therefore the centre state relation was influenced.
1967-1977-
In this phase government other than the dominant government were established in many states where the demand for the state economy was also very strong. During the time of June 1975 when the national emergency was declared, it affected the position of the dominant party and further when the election held in 1977, it lost its majority and again formed a new part consisting many other parties and formed the coalition government.
266 Banerjee, S. Coalition Politics and Federalism in India. [online] Ijims.com.
Page | 159 1977-1989-
In this way all the constituent parties were unable to unite themselves for long period and at the time of next election that was held in 1980, again the dominant party secured its majority and continued till 1989. Indian federation got completely converted into unitary form from multiparty system and democracy to dictatorship during the internal national emergency period which was from 1975-1977. Later on the dominant party was overthrown by the coalition government that was newly formed because of the reaction given by them. But unfortunately the coalition government did not survive for long. Because of which again the dominant party came to its position and recaptured the power at centre and in other states as well. As a result the number of regional or state political parties representing was reduced in the federal government of India. For making a strong centre and strong state because of the demand for state autonomy a new commission was formed naming Sarkaria commission which was formed in April 1983 in order to examine the relationship between the state and the centre in India.
1989 onwards-
In this particular phase which was 1989 onwards the nature was changed from one party dominance to multiparty system. After overthrowing the dominant party out of its power in loksabha election that was held in 1989. A coalition government came into its power and after 1989 the centre has been ruled by that coalition government only till date. This transition period affected the nature of federal government. In states also the same scenario was taking place. However, in same states the coalition politics was giving a stable form of government while in some of the states it was observed that the coalition politics is giving unstable form of government where the centre has to intervene oftenly.
After the 1989 phase which is also known to be the coalition or multiparty system phase no national party was able to hold its power alonely in loksabha and every time a government at the
267 centre was formed by the political parties or the blend of national and regional political parties.
After the failure of the coalition government two major alliances came into power after 1997 the national democratic alliance along with the support of some regional parties and united
267Sridharan, E. (2003). Coalitions and Party Strategies in India's Parliamentary Federation. Emerging Federal Process in India, 33, pp.135-152. Page | 160 progressive alliance. Learning from the past experience it was believed that the coalition government had to came in order to stay and develop certain institutional frameworks to properly coordinate with the coalition partners and with the prime-ministers along with the leaders of main supporting parties.
In 2014, 16th Loksabha election it was a clean sweep victory taking 336 seats and self winning 282 seats by the NDA which was lead by the BJP and UPA was having just 60 seats and other
268 regional parties secured more than 100 seats.
But in the parliamentary election which was also held in 2014, all the regional and national political parties which were a part of NDA and UPA formed another party. In this era those parties are associated with the coalition government both at the state as well as the centre ruling their respective states are the strategic partners of NDA or UPA or third front. The loud voices that were raised for the demand of state autonomy are becoming weaker day by day. But still we hear some of the voices from other opposite parties which have come into power other than the ruling party at the centre. The problems that the centre –state relations are seems to be resolved with establishment of its era. The question arose that if the regional party will be in associate with the ruling party of federal government then to whom it will blame. Because of having support from the national party the regional parties have a stronger voice to counter.269 Thus the coalition politics and the regional parties have developed both at the centre as well as at the state level and also helped to further develop a participatory political culture that influence the federal process inevitably in India.
We cannot conclude or state that the regional and its acting were justifiable but it has influenced evidently on the federal structure and on its process.270 Therefore the political costs have to be analyzed for the development of coalition politics that our federalism have. Similarly the reverse problem arise about the demands of other alliance parties were the major alliance parties did not even bother.
268 Staff, Q. (2014).India election results—a landslide for the BJP and crushing defeat for Congress. Quartz. 269DEMAND FOR STATE AUTONOMY AND ITS IMPACT ON Indian FEDERAL SYSTEM Shodhganga.inflibnet.ac.in 270ibid Page | 161 Coalition politics had left and remarkable impact at the state level on the office of the chief minister. It is found that in many cases the chief ministers position’s was undermined as a result of political games and its opportunism by unscrupulous politicians. Again the coalition politics
271 tensed the government for the centre state relations.
THE NATIONAL FRONT GOVERNMENT-
An attempt was taken to form an non-congress government by Mr. V.P. Singh, defence minister in Rajiv Gandhi’s cabinet at the centre in 1988 after the janata government. That particular national front government was an alliance to remain the congress out of power among disparate individuals and parties. Because of the partisan interests and personality squabbles the alliance began to fall apart. “ The contradictory traits of his personality, exacerbated by situational imperatives, made him earnest and Machiavellian, decisive and ambivalent, consistent and inconsistent at one and the same time.”272 A search for pro janata party hacks was began by him to fill the positions. All state Governors were dismissed in January 1990 inorder to ensure value based politics. Minority government was formed at the centre in June 1991 under the leadership of the Prime Minister P.V.N. Simha Rao. Somehow the Rao government was successful in initiating economic reforms but in other hand it failed to promote value-based politics.273 It made reasonable coalitions through buying support by sustaining itself in power. The government was not hesitant to use the President’s rule for partisan purposes like the previous congress regimes in the arena of federalism.
THE UNITED FRONT GOVERNMENT-
The next Lok Sabha eletion was witnessed a severally fractured verdict with no one party or coalition being able to come anywhere near an absolute majority which was held in 1996. It was miracle that after the after the parliamentary polls also there was a government at the centre, as the situation with the party system as a disarray and the political leadership in a worst ever crisis of credibility. In promoting its hastily drawn ‘common minimum programme’ the Front might have flattered but it had stalled for some time much to the relief of minorities by the
271 Mahesh Rangarajan, Coalitions and political stability India’s Future Prospect, Indian Journal of Applied Research 272The Times of India, 13th March 1990, an excellent editorial on V.P. Singh, p.10 273The Statesman Weekly, 4th February 1995, p. 4. Page | 162 saffronization of centre. How the political universe would unfold within the few months and years that nobody knew but none anticipated realignment of political parties and leaders in order to provide stable situation in political arena. In that situation the centre seem suffering from power deflation and fragile and it was obviously constrained the analysis of future itinerary for the federal system in India.
CRITICAL EVALUATION-
Whatsoever be the profits and losses in accordance with the coalition era, the Indian federalism grow rapidly and strengthen itself which cannot be even denied. The views, problems, demands of every sections or part of the society came into the picture only through the coalitions that was made. Everyone in the society is happily satisfied with what the coalition politics is representing itself. It has also been found out that opportunities for mutual adjustments have been provided because of conflicting attitudes. Coalition politics may increase the political growth and may develop the nation through cooperative approach that has been produced in the sphere of centre- state relation in respect with the federal structure that we have.274 The biggest demerit of the coalition government is that its very unstable in nature both in state as well as in centre. And the main reason behind this demerit is because of lack of integrity and absence of collaborative and ideological affinity. It also further affects adversely the development and functioning of the Indian federal political system and also in many of the cases the great national and regional interest gets hampered in most of the coalition because of this instability.
The two main important components of the coalition government which can also be considered as the pillars because it has been playing a very significant role in making and strengthening the Indian federal system and the success is also depended on these two components I.e, cooperative attitude and collective responsibility.
If we talk about the reality of Indian federal system then coalition politics is its actual reality check. Different regional political parties have now a days becoming a neccesary part of the politics both in centre as well as in state. The separatist movements were being threatened for the
274 Banerjee, S. Coalition Politics and Federalism in India. [online] Ijims.com. Page | 163 unity of the nation.275 At this point of time all the national political parties have realized that they are not going to get their
majority single handedly in any way and if they are willing to rule over both the states and the centre then they have to form a coalition group in order to be in power. The bonding and the relationship of all the political parties clearly depends upon the relationship between the individuals from that particular political parties. Therefore for the development and smooth functioning of the federal government depends upon the intra-party relationship of them. If the ruling party in regional level is different from the ruling party in state level then the conflict between those political parties influences a lot on the administrative, legislative and financial relations between the central and the state government. W.H. Riker stated that “Whatever the general social conditions, if any, that sustain the federal bargain, there is one institutional condition that controls the nature of the bargain.this is the structure of party system, which may be regarded as the main variable intervening the background social conditions and the specific nature of the federal bargain.” He also stated that “centralizing and decentralizing tendencies of a federal system mainly depends upon the degree to which the parties are operating in the central government and control parties in the present government.”276 India has been leading a multiparty system having various kinds of regional political parties and continuously engaging themselves in political processes.
This paper had tried to show how the regional political parties are rising and how the coalition government is contributing in breakdown of the single party system from the multiparty system specifically at the centre. The shifting of dominant federalism into cooperative federalism is the drastic change that has been reflected by the coalition politics in India.
WHY ARE THERE NO COALITION GOVERNMENTS IN U.S.-
275 MILAN VAISHNAV, The Complicated Rise of India’s Regional Parties, Carnegie Endowment for International Peace (2013) 276 William H. Riker, The Heresthetics of Constitution-Making: The Presidency in 1787, with Comments on Determinism and Rational Choice, 78 American Political Science Review 1-16 (1984) Page | 164
Elections are district based for the house of representatives, which indicates that there is no ‘national party’ for individual districts for which the candidates has to be selected.277 Rather, the ‘national Republican party’ in the house are represented as as an aggregation of district-based parties. Their challenges might call them traitors to the Republican Party, but they could respond that they were the traditional Republicans or the true moderate. Also the reason why coalition does not occur in the United States because these coalitions are the features of the parliamentary systems but not the separation of powers. There must be a majority in the parliament for a government to function at all in a parliamentary system to choose and then support a chief executive.278 The executive government is headed by a president in a separation of powers, elected separately from the legislature, and the president can run the government even when the
279 parliament is unable to act.
Circumstances may arise where some sort of coalition government in a separation of powers system might be required. Therefore, the system run by U.S. for separation of powers could accommodate the coalition government. In order to conclude thinking about why U.S. do not have coalition governments in congress advises that the constitution might play a smaller role than the role of statutes, norms, ordinary policy decisions in creating dysfunctions that are being experienced now.
CONCLUSION-
It can be concluded that India does not have good experience in making a coalition government but the coalition is much needed and has been enacted here to stay. And also it can be stated that coalition politics have played a inevitable and significant role in Indian politics reflecting the federal character of the nation.280 Now India wants a stable future in politics taking the coalition politics into consideration and working with the same. And also in light of the above context or
277Act of June 25, 1842, ch. 58, 5 Stat. 491; see also Reapportionment Act of 1929, Pub. L. No. 71-13, § 22(a), 46 Stat. 21, 26 (codified as amended at 2 U.S.C. § 2a (2012)). 278See, e.g., Mark Eisen, Note, Who’s Running This Place? A Comparative Look at the Political Appointment System in the United States and Britain, and What the United States Could Learn, 30 B.U. INT’L L.J. 295, 297 (2012) 279The rise of what then-Professor Elena Kagan called “presidential administration” illustrates this phenomenon, in the context of a legislative system that is effectively paralyzed across a wide range of issues. Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245 (2001). 280 Carolyn Elliott, Democracy, Governance and Political Parties in India: An Introduction, 4 Sage Journals 1-7 (2016) Page | 165 information that has been put forwarded it can be said that - the coalition has to be legitimate and in order to meet socioeconomic development in the country this has to be adopted. We can also infer that it is the responsibility of each and every political party that irrespective of the type of government it is and whether it is a within the one party system or within the coalition government. And it is all about preserving national security and developing and strengthening
281 the Indian federal system not only thinking its power.
Thus it is conferred that the whole discussion made under this topic can be placed in the backdrop of overlapping connections between the states and the centre or we can say that it is between the national and the local politics in day to day life. Hence it is necessary to understand the complicated interactions between the extra political forces and the organizational mechanisms that is structured under the frame of the constitution at both the local and regional levels. Federalism has to be cooperative and the planning should be need based in order to form a coalition government. This paper purely explores the paradox of federalism and coalition
282 government in India.
TITLE: INTERCOUNTRY CHILD ADOPTION: WHO MUST ADOPT, WHAT IS IN THE FOREMOST INTEREST OF THE CHILD OR THE FAMILY ADOPTING. AUTHOR: Deepanshu Paul
ABSTRACT
Adoption is mainly a construction of a family worldwide. Intercountry adoption took place after second world war and it became a service to homeless and families without children and also for childless couples in the west. Intercountry adoption requires prospective adoptive parents (PAPs) so that they can judge the eligibility and suitability as explained under Article 5 of the 1993 Hague convection. The main aim of PAPs is to place the child(ren) with best possible parent. Requirements of every home varies from country to country and its
281 State Constitutions in the Federal System., Advisory Commission on Intergovernmental Relations (1989) 282Biswajit Mohapatra, Cooperative Federalism,Competitive Regionalism and the Role Of Regional Parties led Coaltion Governments in the Present Era, Federalism in India:Towards a Fresh Balance of Power 223-233 (2014) Page | 166 jurisdiction, official and non-official agencies, between Hague Convention adoptions, non- Hague Convention adoptions and attention towards ethical issues such as conflicts of interest have been endorsed. Around 18 million poor and orphans in India are looked after in an orphanage. Every year around fifty thousand children become homeless just because of their helpless parents and single mother. Many of them die due to malnutrition and other several diseases due to lack of clean water and sanitation. It is duty of the state to safeguard children and provide them with all basic necessities and with their overall development. The main objective of this research paper is to focus on the solution of children without family and family without children with reference to international provision for intercountry adoption and provision of intercountry adoption in India. This paper analyses the situation of intercountry adoption prevailing today. It also focuses on recent developments and how there had been decline and steady rise in the rate of adoption. Indian adoption laws for intercountry adoption has is also taken in consideration.
INTRODUCTION
Intercountry adoption can be explained as a procedure of concluding a child legal rights and obligations to the biological and replacing them with same rights and obligations for adoptive parents. It creates a relationship between the adoptive parents and adoptive child. It basically provides the child a balanced physical and psychological environment for the welfare of the child.
On an international perspective the convention of the rights of the child with regard to intercountry adoption regulated by the Hague convention 1993 with regard to child protection in respect of intercountry adoption has been ratified by almost 90 countries.
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Each and every child has a basic right to be loved and to grow in such an atmosphere which is filled with love and care, moral and material security and this becomes possible only when child is brought up in a family and taken due care of. The most affable environment would be a child’s life with his biological parents. But due to any circumstances there is situation that a child cannot be brought up under care of biological parents or near relative or situation where there is impossible to trace parents or where parents not having intention to take care of child in a such cases best alternative is to give a child in adoption
Origin of adoption would be better illustrated with the help of judicial pronouncement in case of Laxmi Kant Pandey vs Union of India283 the Hon’ble apex court stated that
“every child has a right to his or her welfare and be secured of his or her moral and material security and in the case of child’s were they are left abandoned and no were about of the biological parents are known adoption will be best suited for the welfare of the child and concluded that adoption means the process by which adopted child is permanently separated from biological parents and become the legitimate child of adoptive parents”.
The idea of ‘male child’ adoption principals implicates to the girl child abandonment and that is is an unsuccessful truth in our individual nation. In a country like India where only male adoption is taken into consideration and girl adoption is very less as compared to the male adoption. Basically, male adoption is for the ‘moksha’ in Hinduism for the father which can’t be get by a girl that’s the main reason of male adoption in India.
LITERATURE REVIEW
The information collected for the purpose of this paper has been collected from a variety of sources including:
1. Research Papers such as:
TITLE AUTHOR NAME OUTCOME LACUNA/GAP CITATION International Child Bridget M. Hubing In this research paper This paper Volume 15 Adoptions: Who Should author focuses towards focusses more on Issue 2 Decide What Is in the Best the role of international conventions rather Symposium
283 AIR 1984 SC 469 Page | 168
Interests of the Family bodies in adoption and than the on deals with the concept discussing the role International that whether adoption regarding Security can be done only by a international child couple or also by a gay adoption. lesbian or a single parent, it deals with different countries adoption and regulations. In the Child’s Best Hannah Loo In this research paper The researcher Volume 17 | Interests: Examining authors explains the fails to examine Number 2 International Child child’s interest in and provide us a Article 7 Abduction, Adoption, and international adoption. crystal-clear Asylum understanding regarding the intercountry adoption rather than the researcher only focuses on the welfare of the child with no concern of the legal framework regarding the same. International Adoption: Sara R. Wallace In this research In this research Arizona The Most Logical author focusses on study the Journal of Solution to The how the adoption is researcher tries International Disparity Between the granted to abandoned to examine the and Numbers of Orphaned and orphan children adoption with Comparative and Abandoned and also deals with regard to orphan Law Vol 20, Children in Some united nation reports and abandoned No. 3
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Countries and Families on granting home to child but nothing and Individuals Wishing these deprived has been said to Adopt in Others? children. regarding the child of whose where about the parents are known which doesn’t provides a better understanding of adoption of a child on a general perspective
RESEARCH OBJECTIVE
The main objective of research of this project is to know the nature of “Intercountry Child Adoption: who must adopt, what is in the foremost interest of the child or the family adopting”. To assess the extent of intercountry adoption prevalent in India. To identify the factors motivating intercountry adoption.
RESEARCH QUESTION
What is the solution of the problem of child without family and family without child? What is foremost interest of the child and families involved? What is the international provision for intercountry adoption? Page | 170
What are the provisions of intercountry adoption in India?
RESEARCH METHODOLOGY
The research methodology used in this project is Doctrinal research methodology. The present study is an outcome of intercountry child adoption. The main sources of this study are the data collected from prominent publications of the concerned authorities, books available on the topic, articles, essays, newspaper reports, law journals, research studies, the internet. This paper will explain requisites of an intercountry adoption.
I. WHAT IS THE SOLUTION OF THE PROBLEM WHERE NEITHER THE CHILD HAS A FAMILY NOR FAMILY HAS A CHILD?
Solution to the problem of overabundance of children who is in need of families.
The explanation is ‘intercountry adoption’ is.
A. Children who are in need of families
This issue of children without family isn’t very unique its very common now a days to particular countries and poorer countries in the world. Children without families has to deal with many difficulties which other children are not familiar with. The main reason for this is war, national disaster caused a shocking financial peal on families. As a result, families like these are incapable to afford them with basic necessities due to which the children like this are forced to be abandoned and families abandon them out of shame and need.
B. Families who are in need of children
In the recent years, families who need children has increased in trading countries such as India, Unites States and other Western countries. Persons who have intention to adopt for various motives specifically, for infertile couples, single parent, single person, gay and lesbian (in some countries only),
“adoption constitutes the major alternative to infertility treatment and infertility 'by-pass' arrangements such as donor insemination and surrogacy”. Page | 171
After the legalisation of abortion in many countries the female who don’t want to get pregnant do this so that they don’t have bear the pain and this has increased the adoption in many countries. Infertile parents who is not having child for many years can adopt a child who is in need of family and family who is in need of child can do adoption. Even the single parent can do adoption, in India there is a criterion that when you adopt a child of opposite sex then there should an age difference of at least 21 years. There is no law for those who are lesbian or gay and want to adopt child.
C. Solution of International Adoption
When families are unable to adopt a child domestically the only alternative left to them is intercountry adoption by exploring the world.
“An estimated 20,000 international adoptions take place worldwide every year approximately half of these adoptions involve U.S. citizens as the adoptive parents”.
Though the United Nations had acknowledged want for intercountry adoptions, this explanation has met by some confrontation from “Third World” nations who can observe the loss of its offspring to industrial countries as “imperialistic”. Consequently, condition at the laws and guidelines of the “sending country” and "receiving country,” worldwide adoptions may be extra hard, unstable, and may require more expenditure than intra-country adoptions. Though, considering the effects and the opportunity of not in any other case being able to adopt an infant, many prospective adoptive mother and father locate the crowning glory of intercountry adoptions.
II. WHAT IS IN THE FOREMOST INTEREST OF THE CHILD AND FAMILIES INVOLVED?
Many scholars and activists have written for and against the interest of the intercountry adoption of child.
A. Arguments for Intercountry Adoption
As it has been stated that intercountry adoption is the finest solution for the children with no families and families with no child. In difference to children in foster-care, orphanage, roadsides
Page | 172 adoption makes the child receive “love permanent home which is necessary to meet basic needs of a child or children”. Therefore, intercountry adoption is a positive solution to many problems because the child who is in foster-care, orphanage, street who is been not adopted from many years gets a loving home through intercountry adoption.
“In successive years different countries have decided whether or not to make their children available for adoption abroad based on some combination of perceived needs of homeless children, often precipitated by war, poverty or other forms of social crisis, and political attitudes, which can make intercountry adoption unacceptable as a method of addressing
284 children’s needs regardless of the extent of those needs and the extent of social crisis”.
B. Arguments Against Intercountry Adoption
It is normally on monetary basis, also at national or individual level. Personal level point to the "black market" of children selling, which was produced on high demand for children. For instance:
“In 1974, it was predicted that over 5,000 children were sold in the United States for adoption. In the consequence, critics of international adoptions argued that the practice only operates for improper financial gain and does not take into account the best interests of the child or families involved”.
National level, mainly stem from "colonialist" or "imperialist" notions.If you have a child, then you know so well how daunting it is when you have to leave her or him to go somewhere for a reasonable period of time or forever. So how would you feel if you had to give up your child to someone that you do not know and is from another country. It is reduction of children from poor countries to rich industrial countries.
III. INTERNATIONAL PROVISION FOR INTERCOUNTRY ADOPTION
284 Elizabeth Bartholet, International Adoption: Thoughts on Human Rights,13 BHRLR Page | 173
The united Nations Convention on Child Rights provides that if a child is living in an unsuitable environment and it does not serve his best interests in living there or he is away from his parents temporarily, he is entitled to assistance from the State. This is provided in Article 20 of the UNCRC. The States have to provide for the assistance according to domestic laws of each State. Such care can be in the form of foster placement, adoption, Kafalah in Islamic law or placement in institutions for child care. When deciding the mode of care to be provided, due consideration has to be given to the desires, welfare and the ethnic, culture and linguistic background of the child. This is to ensure continuity in the circumstances for the upbringing of the child. It should be ensured that the best interests according to Article 3 of the UNCRC are kept in mind while deciding whether the child should be given to the protective custody of the state or the mode of care to be given to the child. For this purpose, the permission of the parents, legal relatives or the grandparents are required. The Commissioner instituted under the Convention should identify that ICA is the only alternative that can help fulfil the welfare needs of the child. The child is placed in foster to the adoptive parents in a different country. It should be ensured that the placement is not done for an improper financial gain of the parties involved. The Hague Adoption Convention protects children and their families from the various threats involved like illegal, irregular or premature adoptions abroad. The Convention operates through a system of National Central Authorities, reinforces Article 21 of UNCRC and makes sure that the ICA is done in the best interests of the child and is in consonance with his/her fundamental rights. Despite the High Commissioner being in place, most of the countries are non-signatories and many inter-country adoptions take place outside the scope of the Convention. Such countries have comparatively relaxed provisions for inter country adoption. Taking this fact into consideration, the non-signatory countries have more people going for inter-country adoption. For instance, adoptions from Ethiopia has grown exponentially over the last few years, allowing around 4500 adoptions to the US in 2009-10. Apart from the Convention on the Rights of Children and the High Commissioner, there are other international instruments which prevent the misuse of the child’s rights in cases of international adoption. Some of these are European Convention on Adoption of Children, 1967, Inter-American Convention on Conflict of Laws Concerning the Adoption of Minors, 1984, and the European Convention on the Exercise of Children’s Rights (ECECR).
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IV. PROVISION FOR INTERCOUNTRY ADOPTION IN INDIA
In India, adoption is governed by the various personal laws. The provisions and the rules are different under different religions. The adopted son is severed from the biological parents and he is placed in the adoptive parents and legal relationship is created. This also results in the creation of corollary rights in favour of the adopted child. Adoption in India has its roots in ancient times where adoption was done for fulfilling spiritual duties. It is done to continue the legacy of the childless person.
One of the most significant issues in inter-country adoptions is finding prospective adoptive parents, preferably of Indian origin. The Supreme Court of India, in the Karnataka State Council for Child Welfare v. Society of Sisters of Charity St Gerosa Convent285, had held that
“the rationale behind finding Indian parents or parents of Indian origin is to ensure the well- being of the children and that they grow up in Indian surroundings so that they can retain their culture and heritage. The best interest of the children is the main and prime consideration.”
However, ICA is still a novice concept in India. There is not much ground gained in this aspect of adoption. However, this form has received the backing of the Supreme Court through the precedent of Laxmikant Pandey v. UOI. This precedent led to certain guidelines being given for ICA adoption. However, policies and legislations need to be taken up in order to properly regulate ICA in our country. It is necessary to keep in mind that welfare is the only paramount consideration and hence, there should be great care that has to be taken when the child is given to foreign parents in adoption. It should not happen that the child is not neglected or deserted, and the foreign parents take the excuse of absence of regulations and get away scot free. The apex court further went on to law down requirements for making a foreign adoption. Firstly, the application must be sponsored by an agency licensed under the Government of India or a governmental NGO. The age has also been laid down that the adoption should happen before the completion of the age of 3 years. The purpose behind the same was that the child would be more assimilating of the alien culture and circumstances that he would be subject to when adopted. The Court also laid that in the absence of statutory provisions, the provisions of the Guardian and Wards Act would be applicable. Thus, in the absence of a statute regulating ICA, the Supreme
285AIR 1992 Kant 263 Page | 175
Court has played a pivotal role in regulating the ICA form of adoption in India. However, at the international stage, India is a signatory to the Hague Convention that protects children from exploitation and abuse under the guise of ICA. Additionally, the ‘authorization’ should be given by the Ministry of Social Justice and Empowerment or Government of India. In January 2011, India implemented new steps to provide for more centralized process of ICAs. Additionally, the prospective adoptive parents are needed to be well versed with the various laws related to adoption in the Indian perspective adoptive parents. In the case of In Re Rasiklal Chhaganlal Mehta286,
“the issue of transnational adoption was first discussed by the court, which held that adoption under Section 9 (4) of the Hindu Adoption and Maintenance Act, 1956, inter-country adoption is legally valid”.
CARA (Central Adoption Recourse Agency) Guidelines for Adoption
Separate policy guidelines for intercountry and in-country adoption has been issued by CARA. The main policy involved for the adoption of child should strictly act in accordance with the guidelines of CARA and should be registered with respective state governments. No Objection Certificate (NOC) has been made obligatory by CARA for intercountry adoption, the application should be before the proficient judicial courts.
Agencies which are Approved for Adoption
With motive of welfare of child and to safeguard their interest Indian government recognized following agencies.
1. Indian Placement Agencies - 73 (in various states) 2. Foreign Placement Agencies Enlisted - 254 (in foreign countries) 3. Voluntary Co- ordinating Agency in India - 13 (in various states) 4. Scrutiny Agencies - 13 (in various states)
286AIR 1982 Guj 193, (1981) GLR 921 Page | 176 Above 2000 children are given for adoption within India whilst more than 1100 children are sent outside India for adoption.
Year In- country Inter- country 2003 2150 1384
2004 2350 1310
2005 2454 1266
In the case of Mr. Craig Allen Coates v. State through Indian Council for Child Welfare and Welfare Home for Children287the Court held that
“when the adoptive parents are unable to show the clear motive for the adoption of a child from another country, then the adoption process will be barred and be declared as mala fide CARA should ensure more stricter guidelines in this regard.”
Process of Adopting a Child from India
1. Enlisted Foreign Adoption Agency (EFAA)/Central Authority/Government Department. 2. Recognised Indian Placement Agency (RIPA). 3. Clearance by ACA. 4. Matching the Child Study Report with Home Study Report. 5. NOC from CARA. 6. Petition to the Court. 7. Making of Passport and Visa of that Child. 8. Child Travels to Foreign Country
In the case of Maria Chaya Schupp v. Director General of Police and ors288 the court held that:
“It is essential to carefully scrutinize all adoption documents along with taking down relevant permissions from biological parents before going for intercountry adoption.”
Process of Adopting a Child an Indian Child in US
287162(2009) DLT 605 2882010 CriLJ 883 Page | 177 India being a party to Hague adoption convention, thus adoptions from India must follow specific process which is designed to meet requirements of conventions. An adoption which is completed out of order makes eligible criteria to fail for immigrant visa to United States.
1. Select an Adoption service provider approved or accredited by U.S and also by CARA to operate in India 2. To be eligible to adopt apply to Form I-800A of USCIS. 3. To adopt and match a Child apply to authorities of India. 4. For eligibility of child to immigrate to United states as a convention Adoptee apply to USCIS form I- 800 and also to receive U.S. Agreement to receive U.S. agreement and continue with adoption 5. For specific purpose of adopting child in India or to get hold of custody. 6. A U.S Immigrant Visa must be applied for child to make it possible to bring your child home.
Procedure for adopting a child in India?
In India this procedure is governed various laws and Central Adoption Resource Authority overlooks the process of adoption in India which is govern by multiple laws.
Adoption process can be understood by following steps:
1. Registration: The adoptive parents need to register their prospective with an agency. Recognised Indian Placement Agency (RIPA) and Special Adoption Agency (SPA) these two are the agencies allowed to make registration. The prospective parents may visit to coordinating agency where the social worker will tell them the basic process, formalities and paper work for registration. 2. Counselling: As the rules the social worker will visit to prospective adoptive parent for home study. The parents also need to attend the counselling session to understand the preparation they should have, motivation and weakness. The home study should be completed within 3 months as per CARA rules.The report after home study and counselling is sent to the honourable court.
Page | 178 3. Child Transfer: The interested couple should be informed when a child is ready for adoption. Medical and other relevant should be shred be shared with couples by the agency and also allows the parent to spend time with the child and makes them comfortable. 4. Child Acceptance: the parents need to sign the documents as soon as they become comfortable with a child. 5. Petition: Documents prepared by the lawyer need to be presented before the court. The adoptive parents need to visit court and sign the petition in front of the court officer. 6. Habits: after the petition the parents have to go to the foster care to know habits of the child by the nursing staff before they take the child to home. 7. Hearing of court: Parent need to attend the court hearing with the child. The hearing is held in a closed room with a judge. The judge may ask a few questions and will mention the amount which needs to be invested in the name of the child. 8. Order: As soon as the report is shown, judge will pass the adoption order. 9. Follow-Up: Follow up reports should be submitted to the court by the agency for the wellbeing of the child this may continue for 1-2 years.
OUTCOME
Sincere efforts have been made with regard to intercountry adoption but still loop holes and lacunas exists till date due to the lack of statutory provisions. Only point taken into consideration is the welfare of the child and no view is taken into consideration from the side of the adoptive parents as not being thinking it to be immaterial as they are capable enough to provide for the basic provisions the of the child the research study basically throws light upon these sides of intercountry adoption and provide all round perspective on the issue as a whole. With taken into consideration all the convention and treaties signed and verified by various countries which
Page | 179 governs intercountry adoption. The research basically tries to help legal fraternity with a view of a codification of a statute which would provide a better legitimization regarding the issue.
CONCLUSION
For trust of nation policy of India for the betterment of children, to safeguard poor and children without parents, with an aim to find families to make it convenient and possible to safeguard their interest as considered in UN Convention on Child Rights and Hague Convention on Inter country adoption whose ratification is done by Indian government. The best interest of child is overlooked as a basic principle beside all adoption laws in India and social awareness programmes helps to change the societies thought and people’s perspectives towards adoption in India.
Children are considered to be a supreme asset of nation. Their nurture is one of the responsibilities of their nation and not only this children’s programmes plays a prominent part in national plans for development of children human resources for their better growth and future for making them mentally and physically fit and morally healthy by endowing them with skills and motivation done by society. The aim is to provide equal opportunity during their growth stages thus reducing inequality and incline in social justice.
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JUDICIAL ACTIVISM: ARE WE MARCHING TOWARDS A WORTHIER SOCIETY?
ABSTRACT
Activism refers to a policy of robust philosophical action or a creative will. In other words, it is the stratagem of being active or doing things resolutely. The famous quote by Martin Luther King Jr., “The time is always right to do what is right” implies the significance of time and how judicial decisions get overruled, modified or abandoned with social transition. Judicial activism, thus, is an attempt to fill up the vacuum created by legislative decisions and executive’s implementation of the same. It has created a huge stir in the judicial structure of the country. Through this paper, we have tried to limn the shift in the attitude of the Indian judiciary from judicial conservatism which prevailed during the 1970s to the modern situation where judges have proudly donned the hat of activists, thereby delivering an epoch of audacious and bold decisions. Secondly, we have also illustrated how the very essence of the Indian Constitution is being ignored while exercising judicial activism by making the basic theory of separation of powers nugatory. Thirdly, this paper also analyses the impact of judicial activism on the power of judicial review as guaranteed by Article 32 and 226 of the Constitution. Fourthly, the paper has portrayed how judicial activism has been exercised in a few landmark cases. Further, it discusses the major criticisms faced by Judicial Activism in the current scenario and how these criticisms have been addressed.
Page | 181 I. INTRODUCTION
In today’s world, people say change is the only constant. There cannot be a more honest opinion about our social community. It is thus, an exigent need to adapt to situations as and when they present themselves. Activism is a pressing issue in today’s democracy and there is no better country than India to understand the impact of judicial activism on people and so. It is through judicial activism that the society tries to acclimate itself with the change implemented over the years. The Indian judiciary has been recently subject to various austere controversies, thereby raising a few pointed fingers at the apex court and its functioning. The current CJI as well as the previous CJI has faced allegations which are worthy of putting them off board. While former CJI Deepak Misra was accused of favouritism in allotting cases to his fellow SC judges, the recent sexual harassment allegations on the current CJI Ranjan Gogoi has led to many losing faith in the judiciary. However, we cannot doubt the significant role that the Judiciary has been playing over decades since its inception and even though its role has been questioned on multiple instances, it has delivered nine times out of ten. The Federal structure of India calls for division of powers between the Union and the provinces. Also, to make matters convenient and error-free, the doctrine of separation of powers is a basic mandate of the Indian constitution. The term “trias politica” or “separation of powers” was coined by Charles Louis de Secondat, an 18th century French social and political philosopher. His model stressed upon the division of the political authority of State into legislative, executive and judicial powers. It was his staunch belief that to effectively promote liberty, these three powers must be separate and acting independently.
II. DOES JUDICIAL ACTIVISM AMOUNT TO IGNORANCE OF SEPARATION OF POWERS?
Moving into the discussion of separation of powers, we shall see how each unit of the Indian tripartite structure has an indirect influence and control over its functioning. While separation of powers is key to smooth operation of any democracy, it is also essential to understand that no democratic system can thrive with an absolute separation of powers or lack of it . There is an inherent degree of conflict and co-operation which prevails within the system in order to ensure regular checks over the activity of one another.
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Now, the barefaced question is what is the reason behind such division of powers? There are numerous reasons, which we shall discuss in detail here. Firstly, it prevents excess accretion of power on a single body as it may lead to a complete breakdown of democracy. People losing faith in the structure is probably the last thing that an egalitarian government wants. The doctrine of checks and balances is something which needs recognition in this context. To avoid autocratic behaviour of any organ of the government, a well-distributed power structure helps to keep a check over the other two organs, thereby ensuring equality among the government units. The legislature keeps a check on the executive by keeping a close eye on the President’s conduct as it has the power to remove the President from office through impeachment if they believe his role to be extremely inconsequential. Similarly, the legislature also possesses the inherent power to remove judges thereby validating their limited control over the Judiciary as well. Over and above, the Executive has a very unique power called the “veto power” which provides them the prerogative to send a bill back to the Legislature for reconsideration, if its terms and conditions are not relished by the President. The Executive also has measured control over the Judiciary is that the appointment of Supreme Court judges and other federal judges are done by the President. The power of judicial review is another sui generis power of the Judiciary. Through this, the Judiciary has the authority to scrutinize the activity of an executive body member or even a bill with the intention of being turned into a law. If the Judiciary finds the bill unconstitutional, it may ask the Legislature to retrace its work and make necessary modifications for it to pass the check.
Considering the role of judges being slightly modified from merely being adjudicators before to activists now, the Indian judiciary has come a long way since its initial days where a high degree of skepticism and hesitation prevailed among the Judiciary while delivering major judgements. Today, people might argue that the doctrine of separation of powers has lost its vigor because of judicial activism but we cannot deny the fact that our society has benefited considerably from the neoteric role of the judiciary. The government has been pro-active in introducing new laws to improve the social conditions but at the same time, there have been certain areas which have
Page | 183 been heavily ignored by the legislature. The vacuum, thus created, has led to the Judiciary further affirming its footing as uninvited attendants. Judicial activism has probably made the most sound in the field of human rights. Environment protection and communal harmony has been on top of the list as far as exercising the role of judicial activism is concerned. Initially, the right to life was restricted was restricted to protection against any arbitrary arrest or to protection of life and limb. However, with the added breadth provided by judicial activism, Article 21 now also includes a plethora of rights quintessential for survival of human race.
The judiciary is inherently the sentinel qui vive, that is, watchdogs on the lookout. Courts have befittingly viewed human rights and environment protection on the same footing and while acting as a cerberus of fundamental rights, it has protected the right of each individual in regard to environment under Article 21. Right to clean environment is an essential part of right to life. In order to protect such an important right, the Courts have often intervened dishing out instructions to the Government for them to carry out. One such instance was the recently concluded case involving the ban on sale of firecrackers. In November 2017, the Supreme Court was very active in ensuring the safety of citizens residing in the NCT region as it demanded an absolute ban on the sale of firecrackers.
III. RELEVANCE OF JUDICIAL ACTIVISM IN INDIA
We shall analyse the case of Arjun Gopal v. Union of India in detail here. Judicial activism had stated its significance magnanimously in this case, when the apex court had to intervene in what many would call a matter of the Legislature. However, this was invariably rejected by the Judiciary and it was absolutely firm in maintaining its stance, debating that it was for the greater good of the community and there was no way they could be held guilty of having overlapped its power. Environmental pollution had reached the tip of the iceberg in the region of NCT and with the festival of Diwali round the corner, the condition was only to get worse. To make things better or rather to avoid further deterioration of the already disastrous environmental condition,
Page | 184 the Court intervened and imposed the ban on sale of firecrackers. The Judiciary had to ride off two challenges here- firstly, this was a law and making laws were completely within the purview of the Legislature. So, did the Judiciary exceed its power in the process? It was also a fact that burning firecrackers was an age old tradition not only on Diwali but also during grand weddings. So, was this not an attempt by the Judiciary to restrain individual liberty of the people living in that region?
The Judiciary argued that since Courts were not mere puppets of the Government, it had absolute autonomy to intervene in matters where public good was of primitive importance. If the Legislature failed to make a law which would prevent considerable harm to the populace, it does not imply that the Judiciary also sits back blindfolded pretending to have no choice but to let things prevail as it would have otherwise. We cannot term this as judicial review. Judicial activism refers to the action of the Court which goes beyond judicial review.
As far as the second challenge is concerned, the Court relied immensely on the theory of balancing of conflicting rights. It was argued that suspension of sale of fireworks license affects freedom of trade. The Court counter argued stating that it would protect the larger public interest by protecting citizens against harmful effects of extreme air pollution. It was also contended that since it was a tradition which dated back to a lot more than a few decades, taking away such a right would also imply curbing individual autonomy to a considerable extent. The Court rejected this stating that in view of principle of inter generational equity and right to people’s healthy air and environment, it was a duty of the Court to address the matter and implement a plausible solution at the same time. Brought into the Constitution by the 42nd Amendment, the State is bound by its duty to protect and improve the environment as laid down in Article 48A of the Indian Constitution . Article 51A(g) also imposes a duty on the citizens to safeguard and protect the environment for generations to come. Thus, Judicial activism along with Constitutional provisions go a long way in ensuring a better and improved environment.
Page | 185 IV. JUDICIAL ACTIVISM V. JUDICIAL REVIEW
Article 32 guarantees the right to move the Supreme Court by appropriate proceedings through writs for the enforcement of the Fundamental Rights provided by the Court. Unlike other rights, it is remedial and not substantive in nature. However, its importance does not decline as compared to other rights because without such a right, the entire Constitution would amount to nothing but an empty set of procedure. It has been rightly called ‘the heart and soul of the Indian Constitution’. Article 32 has been invoked in matters of great public concern even though there was absence of violation of fundamental right. To suit the enforcement of a fundamental right, the Court cannot ignore all canons of judicial procedure and propriety, but certainly it can craft appropriate procedures within the broad judicial framework. The Court’s own power to devise its own procedure under Article 32 cannot be restricted or curtailed by any statute or even by Court rules.
In D.C. Wadhwa v. State of Bihar, the Supreme Court of India stated that the power of promulgating an ordinance is conferred on the President and the Governor to deal with an emergency situation. It is to remedy a situation which requires immediate attention in which the Legislature is deprived of the power at that point of time. Where it appears that the ordinances promulgated is an abuse of power and a kind of deceit on the Constitution, the State prevailing with such promulgation should immediately invigorate. So, this was a result of Judicial Review. However, the apex court went a step ahead and said the re-promulgation of the same ordinance is prohibited. This was an addition to the nucleus of the verdict and this is what is termed as Judicial Activism. When the Court adds to the main verdict or rather states a rational opinion based on the facts and circumstances of the case, which may or may not be inherently related to the case is when they act as activists. They go a little beyond the sphere of the judgement and it is mostly driven by public good or social benefits.
There are certain restrictions on the exercise of Article 32. For example, the Court cannot fix the pay scales of employees while exercising its jurisdiction under Article 32. It also is devoid of the
Page | 186 power of directing the legislature and its delegated authority to make a particular law. It is also to be kept in mind that right to vote and right to contest elections are not fundamental rights, but they are certainly statutory rights. Article 32 cannot be used to enforce statutory rights. These are a few circumstances which restrict the fair use of Article 32. However, this does not imply that it can only be used to demur the validity of a law with reference to provisions involving fundamental rights. In fact, it can be exercised when a law inevitably causes a restriction on the enjoyment of fundamental rights. For example, a tax law which is void because of legislative ineptitude may impede the fundamental rights guaranteed under Article 14 or 19. The validity or invalidity of the impugned law on the ground of legislative incompetence should purport to infringe the fundamental rights of the petitioner as a necessary condition of its being adjudicated.
Another interesting aspect of Article 32 is that though it is essentially available only for the enforcement of fundamental rights, the introduction of PIL has also resulted in the said article entertaining occasional matters in which there has been no infraction of fundamental rights.
Public Interesting Litigation has consequently brought social concerns of the disadvantaged into the judicial fore. Traditionally, a petition could be filed by a person who suffered violation of his rights and was “an aggrieved person”. The emergence of ‘pro bono publico’ litigation, that is litigation at the instance of a philanthropic person shouldering cause of community, is what later was recognized as public interest litigation . It relaxed the traditional rule and started allowing a third party to move the Court for enforcement of a fundamental right under Article 32 provided it would not “intervene at the instance of a meddlesome interloper or busybody and would ordinarily insist that only a person whose fundamental tight is violated should be allowed to activise the Court”. We may also say that this led to the concept of Judicial Activism. As soon as social interests came into the picture, the Judiciary was tempted to go beyond its rule books and bend the legislative intent or the executive purge for the benefit of the entire society. There have been multiple instances where the urge to act as activists have been displayed by the Courts and the results have not been majorly disappointing. Be it the Golaknath case where the Supreme Court declared that fundamental rights enshrined in Part III of the Indian Constitution
Page | 187 cannot be amended, or the supervisory role assumed by the Supreme Court in the recent 2G scam , judicial interventions have often saved the day for the nation.
V. CRITICISM OF JUDICIAL ACTIVISM
Judicial activism has failed to escape criticism like most other judicial procedures. Critics have been tempted to point out that judiciary has been all over the place since it started with the concept of activism. It has been said that in the pretext of activism, what judiciary is essentially trying to do is rewrite precedents with their personal opinion. The argument here, is personal emotions lead to a person’s opinion and if emotions were to drive the justice system, why do we need to have courts in the first place? However, what needs to be understood is that the ideals of democracy is in fact necessary to ensure that unheard voices are not buried by more influential and vocal voices. This strengthens the importance of Judicial Activism. As long as the opinion meted out is constitutional and not arbitrary, there is no harm in accepting the opinion along with the actual verdict. It not only helps in touching certain areas which otherwise would not have attracted a glare of the eye, but also expressly influences social behaviour.
It is a pertinent question that if the Constitution has already conferred vast powers and jurisdiction on the Judiciary, then what is the need of Judicial Activism? It is common perception that when any of the three government organs become sedentary, the whole administrative system loses its foundation and the objective of welfare becomes devoid of its relevance. However, the primary concern of judicial activism is to address the ever-altering socio economic environment of the country. It is the most complex and challenging task facing the judiciary at this hour.
VI. CONCLUSION
Although our Constitution does not acknowledge the concept of Judicial activism explicitly, it has been able to prove its mettle in recent years. The audacious approach of the Judiciary has not
Page | 188 only helped in garnering faith of the people, but it has also been instrumental in extending the hand of the justice system to the downtrodden sections of the society. The relationship between PIL and Judicial Activism has changed the complexion of our judicial structure. As far as separation of powers is concerned, the intervention of the Judiciary has been induced by the inefficiency of the Legislature and the Executive. It is important for one organ of the tripartite structure to veneer the other organ’s deficiency at times because otherwise, there would be no democracy and people would take to protests and revolutions, which is probably the worst thing for our society.
The role of the judiciary is to act as an adjudicator to provide relief to the victims of an act. There are victims within the society and it is their firm belief that if not anybody else, the judiciary shall come to their aid. Now, had Judicial activism not existed, we would still have been living in an era where punishment was given based on the opinion of the jury . It is immaterial whether there were a few cases that the Jury got their viewpoints spot on. What is important is the constant social transition from one phase to another in order to serve victims’ grief and provide them with adequate relief so that their faith in the judiciary does not diminish.
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LEGAL STATUS AND RIGHTS OF WOMEN IN INDIAN CONSTITUTION
Dhikshana Subburaj
India being the largest democratic country in the world having a population of about 125 crores, the Indian women, however, face innumerable problems at home and in the society. A woman, a girl, a wife, a mother, a grandmother, overall women is the key to a family. World would never be complete without a women, law is the set of rules enforced to govern the behaviour of the people and equality being the major objective of the Constitution of India from the beginning women are treated as a weaker section of the society and they are the victims of rape, eve teasing, female infanticide, dowry, domestic violence and many more, earlier they were only allowed to live beneath the shoes of their husband and their father, there was complete male domination over the women, but now laws are being made which secures the life of a women and their interests were the women can lead a life free from the violence of the family and the society, the laws are being made to provide them with rights of which they are the owners and which are in par with the men, This paper covers the aspect of women from past history to the present, the laws contribution in bringing a change to the lives of the women, though efforts have been taken to improve the status of a women to make them live with dignity and respect it is not completely achieved, still the women are being treated as slaves. The author in this paper tries to analyse the reasons and urges the strong need of the constitutional amendments which would facilitate the growth of women in different areas.
Key words Equal opportunity, women rights, male domination, education, weaker section, victims etc…
Introduction The goals formulated by the preamble of the Constitution being Justice, Liberty, Equality and Fraternity are to be achieved; the Indian polity has to be educated with excellence. Article 51 A (e) states that it is the duty of every citizen in India to renounce practices derogatory to the
Page | 190 dignity of women also Section 14 of the Hindu Succession Act, 1956 strives for removing gender based discrimination and effectuating economic empowerment of Hindu Women,289 though many provisions are being made to empower women what is happening in reality, even now women are treated as slaves, in spite of living in the 20th century still the solution to this problem is a question unanswered, though complete freedom for women is not been achieved the laws to an extent secures the life of the women and their interests.
Status of women in the past to present Rolling back to the history of our country, women were treated in a very pathetic way from the very first era,290 women enjoyed equal status and rights during the ancient and the early Vedic period, however approximately in the 500 B.C., the status of women began to decline, with the Islamic invasion of Babur and the Mughal Empire followed by Christianity later worsened women’s freedom and rights. The position of women in India further deteriorated during the medieval period, when child marriages and a ban on remarriage by the widows became a part of social life in some communities in India, which was completely unfair practices being followed in the past,291 now laws have been made by which child marriage is treated as an offence, though there is a separate Act, The child marriage restraint Act, still it is in practice in some places, the existence of personal laws paves way for discrimination of women, the Muslim laws are very discriminatory in nature where the women are always subordinate to men, many laws such as the men can marry four wives, but women should not, if men can alone marry why not women,292 the sole purpose of the constitution being equality is completely ignored in the Muslim laws. Also the existence of Mutta marriage which is contract marriage done by the Muslim male needs to be abolished, where in this marriage before entering into marriage they sign an agreement which tells the validity of marriage it may be for a day, a week, a month or a year, in this type of marriage women is being treated as a property which is completely unfair,293 thus in most of the
289Parashar A. Women and Family law reform in India. Uniform Civil Code and gender equality. New Delhi, India, Sage Publications, 1992, 348 290All India democratic Women’s Association.Gender-Just Laws. Delhi, India: self-published 2000 291 Berman, Harold J.Law and Revolution: The formation of the western legal tradition. Cambridge, MA: Harvard University Press, 2002. 292https://www.bbc.com/news/world-42719964 293 Cook, Rebecca J, Human Rights of Women: National and International Perspectives. Philadelphia: University of Pennsylvania Press, 1994 Page | 191 personal laws women are never treated in par with men and are deprived of their rights, In the Christian law before entering into marriage oath is been taken the husband says he shall treat his wife like his own body, and the husband says he being the child of God shall be faithful to his wife who is also a child of God,294 these oaths are taken by the husband not because he is superior and the women has to be under his control, it’s just that men are physically strong than women, but mostly it is interpreted as men are everything and the women has to be subordinate to men which is completely a wrong and a false notion295, even in Muslim law the men were allowed to have four wives in order to take care of them, but what is happening in reality is women are being treated as slaves and as a property.296 The one and only solution to all this problem is by implementing and following the Uniform Civil Code, following the Uniform Civil Code will reduce the injustice being done to the women to a greater extent, thus the Uniform Civil Code being placed in Article 44 of the Constitution which is the directive principles of state
297 policy must be recognised and implemented which will help in achieving the status of equality.
Constitutional Provisions The Constitution of India guarantees to all Indian women equality under Article 14, Article 16 says equal opportunity has to be given to all where men and women must be equally recognised, women must not be deprived based on her gender, Article 15(3) gives power to the state to make special provisions in favour of women and children, Article 51 A(e) renounces practices derogatory to the dignity of women, and it also allows for provisions to be made by the state for securing just and human conditions of work and for the maternity relief which is dealt in Article 42 of the Constitution of India298, though efforts have been made by the state to promote equality of women it is not been completely achieved because of the lack of proper execution,299 as the saying goes be the change you want to see, the educated people must first start treating women as equal to that of men, then gradually the status of women will be improved.
294https://www.focusonthefamily.com/socialissues/marriage/.../the-foundation-of-marriage 295 Ali, Ikram, Muslim Women Form Law Board. Times New Network, February 1, 2005 296 Dhanda, Amita, Archana Parashar. Engendering Law: Essays in Honors of Lotika Sarkar. Lucknow, India: Eastern Book Company, 1999. 297https://www.mapsofindia.com/my-india/india/the-directive-principles 298 Women’s Empowerment in India: An Analticaloverview; The Asia Foundation 299https://en.unesco.org/themes/education-and-gender-equality
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Legal status of a woman in India Women in India are being provided with the legal security to secure their economic, social and their cultural lives300, there are several Acts enacted by the Indian Government to safeguard the life and interests of the Women.
The Dowry Prohibition Act 1961, Maternity Benefit Act 1861, Protection of women from Domestic Violence Act 2005, Sexual Harassment of women at work place (prohibition, prevention & Redressal ) Act 2013, Hindu Widow Remarriage Act 1856, Muslim Women ( protection of rights on divorce) Act 1986, Guardians and wards Act 1890, Christian Marriages Act 1872, and many more from the year 1856301 till now the Government of India has been making continuous efforts by enacting different Acts hoping for a change in the lives of women, this tireless efforts of the law makers has been successful and fruitful to an extent though not completely, we cannot blindly say that the status of women has never changed from the past, there is a drastic development from the past, where in earlier days women were not allowed to be educated, nor come out of their homes to work, in those days women were completely restricted inside the four walls, but now they are given with freedom and liberty to pursue education and to work,302 all this is achieved only by the constitutional provisions and various Acts and enactments which are executed in favour of women, where the laws strive to promote equality between men and women, but the very important question is why it is not been achieved completely? Still in many places and many situation women are not given equal importance, they are not treated with dignity and respect, men are the decision makers in most of the families303, this needs to be changed where both men and women need to discuss what will be best for the family and the decision has to be taken, it must not be decided only by the male, male is the head of the family does not mean women has to be subordinate to men, it is just that men are physically strong they are considered to be the head of the family, where it is the duty of the men
300 Women Security and Legal Sfeguards in India: Journal of Business Management & Social Sciences Research (JBM & SSR), ISSN No: 2319-5614, 2013; 2:4. 301lawcommissionofindia.nic.in/51-100/Report81.pdf 302 Goonesekere Savitri. Violence, Law, and Women’s Rights in South Asia. New Delhi, India: Sage Publishers, 2004 303https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3110664/ Page | 193 to take care of the women and not to ill-treat them304. As the saying goes charity begins at home, when both the husband and wife are equally taking part in the decisions and interactions and where the husband treats the wife with dignity and respect, it will be a witness to the children where the next generation305 will automatically start thinking that both men and women are equal, thus complete women equality can be achieved only when people start implementing it in their own houses, where the next generation witnessing it will never differentiate women from men except306 for their physical characteristics.
Women and Education The women education plays a significant role in improving the living standards, higher literacy rate improves the quality of life both at home and outside the home, by encouraging and promoting education of children307, especially female children and in reducing the infant mortality rate, a survey which was conducted in India showed results which support the fact that infant mortality rate was inversely related to female literacy rate and educational level, the
308 survey also suggests a correlation between education and economic growth.
In India it was found that there is a large disparity between literacy rates in different states, for instance while Kerela has a female literacy rate of about 86 percent, Bihar and Uttar Pradesh has only 55 to 60 percent which needs to be noted,309 the existence of this disparity is because of the low standard of living, when they are not financially sound the women are sent to household work to support the family which is main reason women are not educated, one more important issue is that parents must give equal opportunity for both girl and boy to be educated, most of the families the boy will be sent to collage to study in spite of the financial crisis but not the girl, the girls will be sent to work,310 this practice has to be changed, the parents must educate both the girl and the boy without any discrimination, it is not fair in blaming the parents alone 304 Imtiaz Ahmad. Divorce and Remarriage among Muslims in India. Delhi, India: Manohar Publishers, 2003. 305 Jacobsohn, Gray J. The Wheel of Law: India’s Secularism in Comparative Constitutional Context. Princeton, NJ: Princeton University Press, 2003. 306 Kapur, Ratna, Brenda Cossman. Subversive Sites: Feminist Engagements with Law in India. New Delhi, India: Sage Publications, 1996. 307https://www.un.org/sustainabledevelopment/education/ 308 Kapur, Ratna, Brenda Cossman. Subversive Sites: Feminist Engagements with Law in India. New Delhi, India: Sage Publications, 1996. 309 Jacobsohn, Gray J. The Wheel of Law: India’s Secularism in Comparative Constitutional Context. Princeton, NJ: Princeton University Press, 2003. Page | 194 even the Government must take steps to offer more job opportunities which will reduce the financial struggle which in turn will increase the literacy rates, also the more scholarship facilities has to be made which will facilitate311 in improving the literacy rates, recently the Indian Government has launched Saakshar Bharat Mission for female literacy, in spite of making various laws which promotes welfare of women, it has to be properly executed, where the executives and officers in charge must execute these laws properly then the status of women can be improved and equality being the main aim of the constitution can be achieved, only when the law makers,312 the officers and the people co-operate the original change can be achieved.
Indian Scenario of women Security As stated earlier the Indian Government has made many laws and Acts to safeguard and secure the life of a women, in spite of such laws, rules and regulations the life of a women is still not completely secure, inequality between men and women313 runs around every sphere of the country whether be it education, governance or economic opportunities. The statistics of 2010 show that one bride is murdered every hour because of the dowry demands, almost 45 % of the Indian Girls are married before they are 18, about 83% of the women report violence claim that their husbands are perpetrators,314 women are the victims of physical violence, rape and many more, how can all this be put to an end? The only way is by improvising stricter penalties and
315 harsh punishments these atrocities done against women can be put to an end.
Extent of misuse Like a coin has two sides the laws which are made for protecting the women are also misused by them, many of the cases filed under Section 498A316 are false claims, where most of the times the innocent mother-in-law and sister-In-law are arrested and undergo stress and humiliation, the 310 Goonesekere Savitri. Violence, Law, and Women’s Rights in South Asia. New Delhi, India: Sage Publishers, 2004
311 Dhanda, Amita, Archana Parashar. Engendering Law: Essays in Honors of Lotika Sarkar. Lucknow, India: Eastern Book Company, 1999. 312 Verma B.R. Commentaries on Mohammedan Law (in India, Pakistan and Bangladesh) 8th ed. Allahabad, India: Law Publishers, 2002. 313Parashar A. Women and Family law reform in India. Uniform Civil Code and gender equality. New Delhi, India, Sage Publications, 1992, 348 314 Jacobsohn, Gray J. The Wheel of Law: India’s Secularism in Comparative Constitutional Context. Princeton, NJ: Princeton University Press, 2003. 315 Dhanda, Amita, Archana Parashar. Engendering Law: Essays in Honors of Lotika Sarkar. Lucknow, India: Eastern Book Company, 1999. Page | 195 laws are made to protect the women and not to take revenge317 has to be understood, false claims must be severely punished as it prejudices the entire motive of law being not to punish an innocent, there are also false cases of sexual harassment, molestation just to318 threaten to male colleagues and to defame them, thus these practices has to be stopped, the laws has to be used only for genuine reasons,319 the Supreme Court of India has labelled the misuse of Section 498A as legal terrorism and stated that many instances have come to light where complaints are not bona fide and have been filed with an oblique motive. Therefore the misuse of the laws must be prevented by enforcing severe penalties.
Concluding Remarks Though there was a lot of discrimination in the past there were females like Rani Lakshmi Bai, Raizia Sultan, Meera Bai and many more who fought for themselves and their country. Women are the largest untapped reservoir of talent in this world needs to be understood and they must be treated with dignity and respect, the most important one is the mentality of the people needs to change where they must see and treat women in par with men, as already discussed only when the law makers, the officers and the people cooperate the status of women can be improved, the laws will only remain as written notes unless it is executed properly, thus the original change can be achieved only when the mentality of the people changes and when the officers and the people in charge of the execution of laws do their duty properly, nothing can help a women unless she helps herself, instead of sitting inside, women must also take initiatives to see the world around her, anything and everything will have both merits and demerits, some women properly utilise the laws on the other hand some misuse it, some are unaware of their rights.
Therefore to put it in a nutshell steps has to be taken to reduce the misuse of laws and awareness programs has to be conducted to educate the women of their rights, things will take time to get systematic as it was already stated Government can make laws but its utilization lies in our hands, therefore being a responsible citizen it is our duty to ensure proper utilization of the
316 Women Security and Legal Sfeguards in India: Journal of Business Management & Social Sciences Research (JBM & SSR), ISSN No: 2319-5614, 2013; 2:4. 317 Imtiaz Ahmad. Divorce and Remarriage among Muslims in India. Delhi, India: Manohar Publishers, 2003. 318 Kapur, Ratna, Brenda Cossman. Subversive Sites: Feminist Engagements with Law in India. New Delhi, India: Sage Publications, 1996 319 The Constitutional Law of India: Dr. JN Pandey Universal’s Criminal Manual, 2011 Page | 196 existing laws and to co-operate with the government to promote for the welfare of women and to ensure that Justice, Equality, liberty and Fraternity are completely achieved.
ANALYSING DELAYS IN THE CRIMINAL ADJUDICATION PROCESS WITH SPECIAL EMPHASIS ON
THE RIGHTS OF THE VICTIM
BY: SHUBHAANKAR RAY Introduction
One of the major hurdles which the Indian judicial system faces as of this date is the onset of delayed proceedings. The major purpose of the criminal justice system is to objectively assess a trial and complete its proceedings expeditiously before the living memory of the victims of the said case fades out. The purpose of their being prosecution on part of the State is that justice should be seen in the public purview. The public purview demands a speedy and swift disposal of cases. Therefore, a delayed criminal process is many a times equated with a denied criminal process as justice if delayed does not result in a change in the public mindset.
In the paper an attempt is made to analyse the delays in the criminal process with respect to the rights of the victim. The analysis is made primarily based on the following two propositional questions.
1. The effects of a delayed criminal process with respect to the feasibility and merits of the case and society in general. How the rights of the victim are affected at this stage. Is the feasibility of a criminal trial completely impaired due to delays in the criminal procedure? 2. The effects of a delayed criminal procedure on the victims. How the victims are affected by a delay in the procedures of investigation, trial and even in the event of a withdrawal from prosecution?
Page | 197 An attempt is made through the paper to understand and comprehensively analyse the effects of such delays and whether any improvements or new mechanism can be developed within the system itself to ensure a transparent, speedy and unhindered procedure.
Research Methodology
The research is done by comparing the aspects of other models such as the inquisitorial model. Comparison is also made with other jurisdictions. Case laws are further used to gain a comprehensive understanding of the various precedents already in place. As concluding remarks suggestions are given to improve the current mechanism. The analysis is done keeping in mind the current provisions in place and what they propagate.
Effects on the rights of the Victim
At the outset it needs to be noted that the adversarial system on which the Indian judicial system functions involves both parties presenting their versions in front of a completely neutral judge. This system fundamentally follows the principal of orality. This primarily means that all the evidence presented must only be actionable if it is by the means of live and proper oral testimony.320 It majorly creates a nexus for the participation of the victim in the process.
It has been held in the case of Dinubhai Boghabhai Solanki v State of Gujarat and Ors.321that the system has to adopt a two-pronged approach when it comes to the rights of the victims. The first one being, that by adding provisions the victim’s involvement with the system of procedural justice can be increased. The second one being, to ensure substantive justice is done by creating an obligation on the State for providing adequate compensation, etc.
The other imperative point to note is the fact that in this system a lot of emphasis is given on the procedure and less on other substantive points. In turn, there are delays and the victims role is virtually excluded as the case is carried out primarily between the accused and the State itself.
The first contact platform for the Victim- The Police A
320 Jonathan Doak, Victims Rights, Human Rights and Criminal Justice, Hart Publishing, (2008), 321Dinubhai Boghabhai Solanki v State of Gujarat and Ors. (2014) 4 SCC 626 Page | 198 The beginning of the procedure on part of the victim is when they approach the police and file a First Information Report (FIR) under Section 154 of the CrPC. It is established that if the police officer refuses to file the report, then they can send it in writing and by post to the Superintendent of Police, but it is also mandated by the provision that the very same mechanism is followed by post. It is noted that this creates the first avenue for delay as the excessive procedural mechanism involved allows a window to the accused for tampering with the evidence. Due to this delay the FIR filed becomes virtually of no benefit.
The second aspect of misuse on part of the police arises when they are required to refer and subsequently inform the informant (victim) to the Magistrate. In such a situation several discrepancies arise, the major one being of turning cognisable cases into non-cognisable ones.322 Through this system the onus is still fixed on the victim and not on the authorities.
A possible solution to this is to follow the inquisitorial procedure. In the said procedure the police record all complaints and forward these complaints which they cannot act upon to the competent authorities. It is seen that there can be primarily two benefits by following this approach. The first one being that the police authorities would become the sole avenue for the victim to actually approach and therefore, not lead to a jurisdictional clash. The second one being, that the efforts of the Magistrate can be utilized to their proper potential by actually pursuing the recorded statements and not by investing time in clerical procedures. The only problem with the approach would be that in case of any discrepancy there would be no immediate alternative mechanism to put forward the complaint, leading to further delays.
The delays primarily result in the exclusion of the victim from criminal adjudication process. In the case of Lokesh Singh vs. State of U.P.323 it was held that a victim should not be kept completely separate from the entire judicial process.
Further delays are also caused by the general attitude on part of the police authorities. As the victim is not considered a proper part of the criminal judicial system therefore it is believed that it is not a proper duty to actually encourage the victims and come forward with their complaints.
322 Malimath V.S. (2003), Report of the Committee on Reforms of the Criminal Justice System. Delhi: Ministry of Home Affairs, Government of India 323Lokesh Singh vs. State of U.P. (2008)16SCC753 Page | 199 A solution to this lies in the Declaration of Basic Principles of Justice and Abuse of Power324 which primarily suggests various reformed mechanisms for the treatment of victims on the part of the police. Basic aspects such as to keep the victims free of intimidation and provide them with due attention and compassion by following basic procedural requirements such as informing them of the progress of the investigation, etc are propounded in the declaration. This basic procedural formalities can also help in overcoming the hindrances of delays.
The final aspect of the problem can be seen with respect to the areas of specialisation. It is seen that any procedural mechanism evolved for a specific niche is not able to handle the entire requirements demanded out of it. A stark example of this can be the Juvenile Justice Act. It set up a special police unit to deal with juveniles as that section of the population may need greater emotional support, etc.325 However, this special unit, due to lack of implementation mechanisms has not been able to fulfil its said purpose. A possible solution would be to create a further departmentalisation to share responsibility and therefore a greater degree of specialisation which the public has access to.
Effects on the rights of the Victim- During the process of investigation
The entire procedure of criminal adjudication does not place any particular emphasis on the victim. The term ‘investigation’326 does not include any sort of prohibition for including the victim in the criminal adjudication process.
The first suggestion given is that the victim should be permitted to properly move the investigation, they should be able to suggest to the judge as to which direction the investigation should proceed.
324U. N. Doc GA Res. 40/34 (1985). 325 Sec. 63 of Juvenile Justice Act, 2000 326 Sec.2 (h), CrPC. Page | 200 A comparative example of such a model can be seen to be in the criminal justice system of France. In this system during the pre- trial period, the level of participation of the criminal is the same as that of the accused. The victim also gets access to proper dossiers regarding the case.
Certain aspects of this system can be incorporated under Sec. 167 of the CrPC. The section primarily lays out the period after which if the investigation has not been completed, the accused has to be released on bail. At this juncture the victim should be given a proper redressal mechanism to understand why the investigation has not been completed and also a mechanism to keep the victim informed of the progress of the investigation.
It is seen that the CrPC does incorporate the victim expressly in two respects. The first one is seen to be under Sec. 170 where a preliminary report is made. The second one is seen to be Sec. 173 (ii) which primarily established that the action taken upon the information received by a said person, then the said person needs to be informed about such action. But in this scenario also an ambiguity exists as this informing mechanism only takes place if the cognizance of the offence is made, and under the aforesaid section it is not clear as to whether the victim should be informed of such actions if cognizance of the offence is not made. Therefore, as there does not exist any express provision, this remains an ambiguous area.
Liability of the State to compensate the victims in the event proceedings may fail
A question which arises, is if due to procedural delays the proceedings do not result in the requisite results then till what extent can the state be held liable. A mechanism to fix state liability may be by deciding the amount of compensation from the Investigation officer who has made the actual error. Thus, bringing the element of human agency into it and therefore deciding a proper quantum based on that.
A major question which arises in this respect is whether the victim can be equated with the State. In the case of Balasaheb Rangnath Khade vs. The State of Maharashtra327, this question was addressed. The rights of the victim cannot be equated to be completely aligned with the State but they cannot also be treated in complete isolation.
327Balasaheb Rangnath Khade vs. The State of Maharashtra ALL MR (Cri) 1153 Page | 201
Effects on the rights of the Victim- During the process of Trial
The first aspect which is brought to the foray in this respect is the element of participation on part of the victim. Participation may be defined as a state of being in control, being treated with certain level of dignity and respect, and above all having a say in the functioning.328 Because of the public character of crimes, this definition is purported to the level of State, as the State is the one who has the actual responsibility to prosecute the offenders.
In the case of Pooja Pal v Union of India329it was propagated that Courts during the process of trial cannot turn a completely blind eye towards the oppressive conduct. It was held that the victim and their family as well have an inherent right to be dealt with fairly.
The primary affiliation the victim shares is to the public prosecutors. Although it is established that the purpose of a public prosecutor is to not be swayed and lay out a proper objective analysis
330 of the situation, but this has the potential to leave the victim completely isolated.
It is noted that the CrPC does give a right to the victim in this scenario of prosecution. Section 302 of the Code permits the magistrate to appoint a person, not below the rank of Inspector who is completely oblivious to the investigation, to conduct the prosecution. This provision thus enables the victim to represent themselves through their appointed pleaders. It is also seen that an exception to this is made under Sec. 225 of the Code whereby every trial in the Court of Session is only conducted by a Public Prosecutor.
328 Doak Jonathan, ‘Victims Rights in Criminal Trials: Prospects for Participation’, Journal of Law and Society, (2005), Vol.32 329 Pooja Pal v Union of India (UOI) (2016) 3 SCC 135 330 S. Venugopal Rao, Victims of Crime, Allied Publishers Limited, New Delhi, (1989) Page | 202 It is a highly contested proposition of the role a victim shares during the process of trial. An established precedent lies in the case of Thakur Ram v State of Bihar331, it stated that a private party (in this circumstance the victim) has no locus after the charge-sheet is filed and only the State is the aggrieved party, which by itself has the duty to defend its stance. This view was further supplemented in the case of All India Democratic Women’s Association v State332where it was stated that any third-party intervention (designating the victim as the third party), between the prosecution on behalf of the State would hinder the overall process by creating a multiplicity of proceedings which would cause complete disarray and confusion.
The second aspect where the rights of the victim come into play is whether their statements should be treated as admissible at the time of sentencing. An illustration of this mechanism can be seen in the Victim Impact Statement procedure followed in the United States. It primarily allows the victim to state the impact the crime has had on them and their family. However, this statement is given only after the sentencing phase and therefore it only has the potential to enhance the penalty, etc but plays no major role in the sentencing process by itself.
It is also noted that the accused does have the right to place their submissions before the court at the time of sentencing.333 However, a similar right is not afforded to the victim in this respect.
A provision in the Code which must be noted with respect to the current context is the power afforded to revisional courts. According to Sec. 397 of the Code, revisional Courts can exercise this power based on their own notions or on the indications of any other person (being the victim in this context) who brings to light previously unknown facts to the Court. This can be said to be a right afforded to the victim. However, what is noted is that this right is only granted at the stage of revision and not at an earlier stage. Therefore, the rational for taking the victim into account is
334 only at a revisional stage and not at a preliminary stage.
Comparison with a Different Jurisdiction
A comparison with the French system is made. It is seen that in this system the victim is involved from the time of investigation itself and suggest questions which may be asked by the 331 Thakur Ram v. State of Bihar AIR 1966 SC 911 332 All India Democratic Women’s Association v. State 1998 CrLJ 2629 333 Section 235(2) CrPC 334‘Third Party Intervention in Criminal Litigation’, Supreme Court Cases Journal (2005) Vol.2. Page | 203 Court to the witnesses. He may even question the trail if it is not conducted with due diligence by the Public Prosecutor. Another suggestion which can be borrowed from this system is the right of the victim to prefer an appeal over a completely adverse order. These suggestions may be incorporated in the Indian judicial system in order to increase the inclusivity with respect to the role of the victim.
Rights of the Victim in light of the 2008 amendment
On the outset it can be seen that the 2008 Amendment did incorporate multiple changes with respect to the rights of the victim. The most starkly visible one is the widening of the term ‘victim’ itself, the new definition also classifies a legal heir or guardian as a victim and therefore allows them to exercise rights on an equal pedestal as the victim.
a. Greater autonomy to Victim
The new provision has provided a certain degree of greater autonomy to the victim by adding a mechanism in Sec. 301 of the Code, whereby the victim has the right to engage a person to assist the Public Prosecutor. He is also permitted to submit written documents with the permission of the Court after the evidence has been closed. This certainly increases the rights of the victim to the extent that they are able to put their view forward better but there is still no substantial impact which the victim can make in the trial process.
b. Increased right of Appeal
The victim is granted a right to prefer an appeal against any particular court order convicting the accused for a lesser offence or compensation. This appears in the Code by virtue of Sec. 372 and is also strengthened by the Victim Compensation Scheme which is provided by virtue of Sec. 375-A of the Code. Even though these mechanism do prove effective but it is seen that they are put in place only to mitigate the damage caused to the victim and do not per se increase the victim’s legal standing.
Page | 204
Areas for which mechanisms still need to be developed
a. Providing information to the victims As of now there exists no provision to provide information to the victims regarding the progress of the trial. Sec. 173 (2) does attempt to incorporate this provision but there exists no proper mechanism for the victim to be informed. A specific provision should be developed to keep the victim informed of the trial.
b. Lack of a proper rehabilitation scheme There exists no proper statutory method to understand the needs of the victim to be protected from intimidation, to have a clear access to the judicial process, etc.335As of now there is no statutory provision recognising the rehabilitative needs of even rape victims. This mechanism needs to be developed on two grounds, the first one being to prevent secondary victimisation and the second one being to allow the victim to regain his credibility in society. Mechanisms need to be developed to allow the victims to be treated with dignity.
c. Right of Legal Aid for victim The CrPC per se does not entail any provision to provide right of legal aid to the victim. The only provision of legal aid is given to the accused by the prima facie test through the Legal Services Authorities Act.336 It is something recognised as a constitutional right337 as well and therefore a mechanism should be developed for the said right to also be available with the accused.
335 S. Muralidhan, “Rights of Victims in the Indian Criminal Justice System”, 2004. 336Ss.12 (10 (h) and 13(1) of Legal services Authority Act, 1998. 337Article 22 (1) of Indian Constitution. Page | 205 Conclusion
The first aspect which is affected by delays in the criminal judicial process is the admissibility of evidence. When an extreme case of delay occurs, it is seen that contradictory statements start appearing due to fading of memory. The immediate consequence is that a party in a winning position ends up losing the case not because of being on the lesser side in terms of merits but due to an extremely tardy judicial process.
Overall, it is seen that several mechanisms can be evolved from the inquisitorial model. The victim per se is not included in the trial system as it is preferred that the system operate in the contours of the State and the accused due to the public character of crimes. The position of the victim cannot be treated to be equal to that of the State but it cannot be treated in isolation either. Greater inclusivity should be granted to the victims to further and express their views during the process of investigation and even during the process of the trial.
More provisions can be incorporated into the code to develop the role of the victim even at the stage of investigation. The inquisitorial model in this respect gives greater rights to the victim to express his opinion and even at certain instances direct the trial. More inclusivity to the victim within the adjudication process still need to be developed. Aspects like free legal aid, greater information to victims, increased right of appeal are all certain action towards the improvement of the system but proper foundational changes are still needed to allow the victim to have a greater standing in the entire process of criminal adjudication.
Page | 206 INTERNATIONAL CRIMES: DEFINITION, ELEMENTS, ESSENTIAL FEATURES
-AIFOONA PUNNARAM
Abstract
Unlike other crimes, international crime is an intriguing concept not just because of its peculiar aspects, features but also due to its wide-ranging impact internationally. It is imperative to understand what an international crime is and what makes it distinct from other crimes, taking into account the spiraling instances of violation of international criminal law.
Introduction
An international crime is an act which the international community recognises as not only a violation of ordinary national criminal law but one which is so serious that it must be regarded as a matter for international concern; further, for one variety of reasons, it cannot be left to the State which would normally have jurisdiction over it. Almost all international crimes are also considered as serious human rights violations; and many as violations of international humanitarian law.
Though the catalogue of international crimes is fast expanding since 1940s, there is still dilemma over its contents. Many authors argue that a crime is not an international crime unless it may be prosecuted in an international criminal tribunal whether permanent or ad hoc. However, this definition would exclude some of the oldest international crimes which are widely accepted like piracy.
The question "what is an international crime?" has two aspects. First, it asks us to identify which acts qualify as international crimes. Second, and more fundamentally, it asks us to identify what is distinctive about an international crime. Some disagreement exists concerning the first issue, particularly with regard to torture and terrorism. But nearly all states, international tribunals, and ICL scholars take the same position concerning the second issue, insisting that an act qualifies as an international crime if-and only if-that act is universally criminal under international law. This definition of an international crime leads to an obvious question: how exactly does an act become universally criminal under international law? One answer, the "direct criminalization
Page | 207 thesis" (DCT), is that certain acts are universally criminal because they are directly criminalized by international law itself regardless of whether states criminalize them. Another answer, the "national criminalization thesis"(NCT), rejects the idea that international law directly criminalizes particular acts. According to the NCT, certain acts are universally criminal because international law obligates every state in the world to criminalize them.
Scholars often claim that there is no agreement concerning what makes an international crime distinctive. According to O'Keefe, for example, "no common understanding, let alone common definition" of an international crime exists.
Cassese, for example, says that the international crimes are "premised on the general notion that international legal prescriptions are capable of imposing obligations directly on individuals, without the intermediary of the state wielding authority over such individuals." Cryer similarly notes that "the fundamental point to understand about these crimes" is that "States have decided that international law, in exceptional circumstances, ought to bypass the domestic legal order, and criminalise behaviour directly."
The International Military Tribunal at Nuremberg (IMT) says: “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced...individuals have international duties which transcend the national obligations of obedience imposed by the individual State.”
A more elaborate definition of international crime is that international crime is an act consisting of an action or omission, contrary to international law, of which essential element is the manifest for dangerousness for the international peace and security and other supreme values of humanity, which attract the criminal sanction. In another definition, V. V. Pella, one of the fore-runners and founders of the criminal international law, shows that international crime is the action or omission punished with a sentence pronounced and executed on behalf of the States.
In his article ‘International Crime’ published in 1967, Jean Nepote, Secretary-General of Interpol defines international crime as, “any criminal activity which has an international bearing, either in itself or because of the character or behaviour of the offender or his accomplices.” Then, the question is when a criminal activity is said to have an international bearing. This depends upon
Page | 208 the way in which the offence is committed, the consequences of the offence, the character of a criminal and his accomplices, the criminal’s behaviour (taking refuge in another country after committing a crime). As such, many different factors come into play in trying to decide whether a crime or criminal is "international ".
Peculiarities/ Features a) Universally Recognised/ International Responsibility
The principle of international criminal responsibility constitutes one of the most important principles for the implementation and enforcement of the provisions of international criminal law on the perpetrators of international crimes.
International crimes are universal crimes; they are criminal and punishable no matter where in the world they are committed. Universal jurisdiction is predicated on the idea of universal criminality, given that it permits states to prosecute acts "without regard to where the crime was committed, the nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction." The justification is based upon the claim that the crime is egregious to all mankind so that any state should be entitled to prosecute and punish. It is therefore closely aligned to the concept that certain international norms are erga omnes or owed to the entire world community as well as the concept of jus cogens, i.e., that certain international law obligations are binding upon all states and cannot be modified by treaty.
One of the most famous statements in ICL is the Nuremberg Military Tribunal's insistence in the Hostage case that "an international crime is such an act universally recognized as criminal." ICTY makes an even stronger claim, insisting that international crimes are "universally condemned wherever they occur," because they are "peremptory norms of international law or jus cogens." The Rome Statute does not explicitly state that international crimes are criminal no matter where they are committed. But universality is nevertheless implicit in the Preamble's insistence that international crimes "deeply shock the conscience of humanity" and "threaten the peace, security and well-being of the world."
Page | 209 b) Individual Criminal Responsibility
The principle of the international criminal responsibility of individuals is originally based on the assumption that individuals are the most essential characters in the commission of international crimes and therefore liable to prosecution and punishment and this is regardless of their official position and includes heads of states or governments. Thus, in the system of international criminal law by the term ‘international criminal responsibility of individuals’ we mean all those who have, in one way or another, participated in the commission of certain acts constituting international crimes. The principle of criminal responsibility also extends, in certain circumstances, to the concept of criminal responsibility of organizations and states. c) Protecting collective values
If we look at the Rome Statute, which provides the international criminal court with jurisdiction to prosecute genocide, crimes against humanity stricto sensu, war crimes and aggression, we find out that it justifies the international character of the above-mentioned categories of crimes by referring to the violation of international peace, security and well-being of the world'. As such, what is sought to be protected is a set of collective or state values according to the traditional taxonomy of protected legal interests. Each of these highly valued interests carries its own legal and moral significance. d) Humanity as the violated legal interest
As per the harm-based system of criminal law, punishment as a moral and political reproach of the offender is justified on the grounds of violated legal interest. Punishment entails a moral disapproval of the wrongfulness of the act and the actor's blame-worthiness. That means, in cases of international crimes, that the criminalised act must involve a moral disapproval exceeding that of other acts with inter-State criminal interest, such as slavery, racism, torture, human trafficking or corruption.
It is not merely individual freedom or other individual interests which are violated by international crimes, but also the collective, society-shaping freedom, through which people
Page | 210 create views for understanding life and formulate criteria for valuing human activity and thus for organising social life. This is the qualitative distinctive element that upgrades one homicide, one rape, or one act of deprivation of basic goods or the multiplicity of these offences onto the level of international criminal law.
Elements of International Crimes
In general, a crime is conceived as having two components: prohibited conduct (which may be called the objective, material, or ‘real’ element of the crime or its actus reus) and a culpable mental state (which may be called the subjective, or mental element of the crime or its mens rea). In addition to material and mental elements, certain international crimes may also require a contextual element. That is, some international crimes may require that the prohibited act occurs in or has a relationship to a particular set of circumstances: for example, a war crime must be closely connected with an armed conflict. This contextual element is sometimes also called a nexus requirement. The concept was expounded in the jurisprudence of the ICTY in the celebrated Tadic´ Appeal Decision.
The contextual elements of crimes against humanity are as follows: (i) there must be an attack; (ii) the attack must be widespread or systematic; (iii) the attack must be directed against any civilian population; (iv) the acts of the Accused must be part of the attack; and (iv) the Accused must know that his or her acts constitute part of a widespread or systematic attack directed against any civilian population.
Kinds of International Crimes
Crimes with an international aspect may be defined and addressed by international agreements and these may not always fall under crimes against humanity, but which adversely affect normal international relations among States, organizations and persons. These crimes are punished in accordance with national laws through international arrangements. Such crimes vary in degrees of gravity.
Page | 211 Then there are crimes prejudicial to international economics, or social and cultural development. These are crimes against the environment, theft of cultural treasures, smuggling, illegal immigrations, drug trafficking, and counterfeiting.
The third area involves crimes against the person, personal possessions and moral values. Slavery and trafficking in obscene publications are included in this group.
The fourth classification involves crimes that are inherently international in character. These are crimes aboard international flights, interference with seabed cables, maritime collisions and failing to give assistance at sea.
International 'crimes' are divided into different particulars.
a) Genocide
The term was coined by Raphael Lemkin in his world-renowned book “Axis Rule in Occupied Europe” (1944). Lemkin defines the crime of genocide as “the destruction of a nation or of an ethnic group” that entails the existence of “a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves.”
Aftermath the World War II, the international community was impelled to impose the prohibition of genocide in ink, which led to the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide.
The legal definition of genocide, as provided in Article 2 (2) of the ICTR Statute, Article 4 (2) of the ICTY Statute, and Article 6 of the Rome Statute, replicates verbatim Article 2 of the Genocide Convention: “Genocide means any of the following acts committed with intent to destroy, in whole or in
killing members of the group
causing serious bodily or mental harm to the members of the group
Page | 212 deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
imposing measures intended to prevent births within the group
forcibly transferring children of the group to another group.
b) Crimes against Humanity
Crimes against humanity constitute a serious attack on human life or dignity or a grave humiliation or degradation of one or more human beings. They are not isolated or sporadic events but are a part of either government policy or of a widespread or systematic practice of atrocities committed by, or tolerated by, condoned by, or acquiesced in by a government or de facto authority. They may be punished regardless of whether they are perpetrated in time of war or peace. The victims of such crimes may be civilians or, in the case of crimes committed during armed conflict, persons who do not, or are no longer, taking part in armed hostilities, as well as, under international customary law, [but not under the statutes of the Yugoslav or Rwanda Tribunals or of the ICC].
The definition of crimes against humanity, which was incorporated into the Rome Statute, reflects the existing customary law by re-affirming the irrelevance of whether the crimes are committed in the context of an armed conflict or not: For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
Murder; Extermination; Enslavement; Deportation or forcible transfer of population; Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; Torture; Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
Page | 213 Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; Enforced disappearance of persons; The crime of apartheid; c) War crimes
War crimes are crimes committed as violations of international humanitarian law during armed conflicts. War crimes are divided into sub-categories depending on whether they are committed in the course of an international or non-international armed conflict. Serious violations of international humanitarian law in the context of an international armed conflict are commonly referred to as “grave breaches” of the Geneva Conventions.
The Rome Statute adheres to the conventional classification of war crimes, which mirrors the language of the Geneva Conventions, and encompasses the following four categories of crimes:
(i) Grave breaches of the Geneva Conventions of 12 August 1949 in Article 8(2) (a);
(ii) Other serious violations of the laws and customs applicable in international armed conflict in Article 8(2) (b);
d) Aggression
The act of aggression means "the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations." These acts can include, among others, invasion, military occupation, and annexation by the use of force, blockade by the ports or coasts.
The London Charter and the Rome Statute are the only treaties that address the crime of aggression. It is extremely unlikely that states have a jus cogens obligation to criminalize aggression – even wars of aggression. Prior to the Rome Statute, no treaty encouraged states to criminalize aggression, much less required them to do so.
e) Torture
Page | 214 Torture has held a prominent place in the list of international crimes since the Commission on Responsibilities, which was established at the Paris Peace Conference in 1919. 'Torture' means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions. The Rome Statute also lists torture as a war crime when committed in both international and non-international armed conflict.
Specific Crimes
The specific crimes include individual murders, extermination lie. mass killing by any means], enslavement, deportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty, torture [which may be physical or mental], rape, sexual slavery, enforced prostitution, enforced pregnancy, enforced sterilisation, sexual violence, persecution, enforced 'disappearance', apartheid and a wide variety of 'other inhumane acts'. The categories are wide and definitions may be found in, for instance, the elements of crimes in the Statute of the International Criminal Court. The categories are by no means fixed as this is a dynamic area of international law.
Conclusion
The evolution of the concept of a crime in international law has gone through different historical phases. The euphoria in Nuremberg over the interpretation of international crimes faded away in the subsequent decades. The attempts of the ILC to codify and elaborate on the concept of an international crime were laudable but generated more confusion than clarity. The concept of a crime has been shaped in the jurisprudence of the ad hoc tribunals; their role in the interpretation of the legal elements of the crimes cannot be underestimated. The judges have consistently underlined the unique nature of crimes within the scope of international criminal justice due to their gravity that goes beyond any of the crimes proscribed by national jurisdictions. The drafters to the Rome Statute pondered over the developments of international criminal law and aimed, to the best of their ability, to produce a more coherent statute covering both substantive and procedural law.
Page | 215 The scope of international criminal law should always evolve to meet new needs and priorities of the international community, both through treaties and through the development of new rules of international customary law. Thus, it is essential that international crimes incorporate new elements into its existing constituent framework as the change in times brings to forefront new crimes, new mechanisms to commit crimes, change in gravity of already existing crimes etc.
LEGAL STATUS TO ANIMALS IN UTTRAKHAND, PUNJAB AND HARYANA, AND IT’S IMPORTANCE
Author – SHIVANSH SHARMA
Page | 216 “The greatness of a nation and its moral progress can be judged by the way its animals are treated”- Mahatma Gandhi
Legal Person means the juridical person whose legal rights and obligations are determined by courts. In India the courts have declared many entities as legal persons such as- Rivers, Deities, Corporations, etc. but the most applauded decisions of granting legal status are the Judgments given by Hon’ble Justice Rajiv Sharma granting legal status to entire animal kingdom including avian and aquatic animals first in the State of Uttrakhand in 2017 and then in the state of Punjab and Haryana in the year 2019.
JUDGMENTS-
• In Uttrakhand, the High Court in case of Narayan Dutt Bhatt vs. UOI and Ors. decided that "all types of all animals, including avian and oceanic ones are legal persons and have a particular status with comparing rights, obligations and liabilities of a living individual. All the citizens throughout the state are hereby declared persons in loco parentis as the human face for welfare and protection of animals It directed State Government that no animal, including ponies moving between India and Nepal, carries excess weight. It also banned the use of any sharp equipment throughout the state to avoid bruises, swelling, abrasions or severe pain to animals. It also directed all vets across the state of Uttarakhand to compulsarily treat animals brought to them by the citizens. If an animal cannot be brought to the doctor, then vet must personally visit and attend the stray cattle or animal without delay.”
• Punjab and Haryana High Court in Karnail Singh and Ors.vs. State of Haryana ruled "All the animals have honour and dignity. Every species has an inherent right to live and is required to be protected by law. The rights and privacy of animals are to be respected and protected from unlawful attacks" "The Corporations, Hindu idols, holy scriptures, rivers have been declared legal entities and thus, so as to ensure and advance more noteworthy welfare of creatures including avian and amphibian, creatures are required to be met with the status of legal entity/legal person. The animals ought to be sound, comfortable, safe, sheltered, ready to express innate behaviour without pain, fear and distress. They are qualified for equity. The creatures can't be treated as articles or property."
Page | 217 • Apart from granting legal status, the Hon’ble Court declared all the citizens in the states as persons in loco parentis as the human face for welfare/protection of animals.
“In loco parentis is a Latin term meaning ‘instead of a parent’ or in place of a parent”. Thus the citizens of the states of Uttrakhand, Punjab and Haryana have to act as the parents of animals for their welfare and protection.
The above-mentioned judgments are given by Hon’ble Courts primarily keeping in mind the welfare and well-being of animals.
For understanding the importance of Legal Person Status to animals, the importance of animals in Indian Economy and culture should be understood first.
Importance of animals -
“The importance of animals in Indian economy, culture and lifestyle is as follows-
1. Food: The animals provide food items such as Milk, Meat and Eggs for human consumption. India is the number one milk and milk products producer in the world. It is producing about 165.4 million ton of milk in a year (2016-17). Similarly, it is producing about 88.14 billion of eggs, 8.89 million tonnes of meat in a year. The value of output of livestock sector at current prices was Rs. 8,11,847 crores in 2015-16.
2. Fibre and skins: The livestock also contributes to the production of wool, hair, hides, and pelts. Leather is the most vital product which has a significantly high export potential. India is producing about 43.5 million Kg of wool per annum.
3. Draft: Bullocks are the back bone of Indian agriculture. In spite of significant progressions in the utilization of mechanical power in Indian agricultural tasks, the Indian farmer particularly in village zones still rely on bullocks for different agrarian activities. The bullocks are saving a lot on fuel which is a necessary input for using mechanical power like tractors, combine harvesters etc. Pack animals like camels, horses, donkeys, ponies, mules etc. are being extensively used to transport goods in different parts of the country in addition to bullocks. In situations like hilly terrains mules and ponies serve as the only alternative to transport goods.
Page | 218 Similarly, the army has to depend upon these animals to transport various items in high areas of high altitude.
4. Dung and other animal waste materials: Dung and other animal excretas serve as very good farm yard manure and the value of it is worth several crores of rupees. In addition it is also used as fuel (bio gas, dung cakes), and for construction as poor man’s cement (dung).
5. Storage: Animals are considered as “moving banks” because of their potentiality to dispose off during emergencies. They serve as capital and in cases of landless agricultural laborers many time it is the only capital resource they possess. Livestock serve as an asset and in case of emergencies they serve as guarantee for availing loans from the local sources such as money lenders in the villages.
6. Weed control: Aniimals are also used as Biological control of brush, plants and weeds.
7. Cultural: Livestock offer security to the owners and also add to their self- esteem especially when they are owning prized animals such as pedigreed bulls, dogs and high yielding cows/ buffaloes etc.
8. Sports / recreation: People also use the animals like cocks, rams etc for competition and sports. Despite ban on these animal competitions the cock fights, ram fights are quite common during festive seasons.
9. Companion animals: Dogs are known for their faithfulness and are being used as companions since time immemorial. At the point when nuclear families are expanding in number and the elderly people are compelled to lead isolated life the dogs, cats are giving the required companionship to the elderly and in this way, making them have a comfortable life.”
Other Important roles performed by animals –
1. Animals like dogs, monkeys are used for safety and security.
2. Various animal products are benifitial to humans such as dung, oils, hairs, etc.
Apart from the economical benefits, the animals are important for sustenance of all life on Earth. All species are interdependent on each other for survival and sustenance. All living life forms are
Page | 219 dependent on each other by the way of food chain.
“As early as 1500-600 BC in Isha-Upanishads, it is professed as follows: The universe along with its creatures belongs to the land. No creature is superior to any other. Human beings should not be above nature. Let no one species encroach over the rights and privileges of other species.”
IMPORTANCE OF THE JUDGMENTS GRANTING LEGAL STATUS TO ANIMALS –
1. A step in transitioning the status of animals from property to legal person- Animals are recognized as property in almost all parts of the world including India(Except in the states of Uttrakhand, Haryana and Punjab). Countries like Austria and Switzerland have granted legal status to the animals by passing legislations whereas countries such as USA and India have taken the judicial approach towards granting legal status to animals. The problem with the property status is that the animals are treated as objects, thus subjected to human cruelty and violence. The property status concept of animals is incorrect and outdated and there is no further sub classification separating animals from other kinds of properties such as cars, houses, machines, intellectual property, etc. Animals are distinct from other kinds of properties as animals being living creatures have feelings and their own will. They feel pain(both physical and emotional) and suffering. If animals are treated as mere property then their basic rights will be considered less important than the financial interest of the people. Legal status makes the animals bearer of certain legal rights necessary for their survival and well -being. Giving legal status doesn’t mean that the animals will be entitled to all the rights available to the citizens as this would make it impossible for humans to utilize animals for necessary functions which in Indian scenario cannot happen as India is an agrarian economy.
2. Determining the role of citizens with respect to the animals- In the judgments, citizens are made persons in loco parentis as the human face for welfare/protection of animals thus defining the role and liability of citizens for the welfare of animals. “Status of loco parentis to citizens is important and justified as animals can apply specific solutions to specific problems whereas human intelligence is more like a “floodlight” which enables us to use our thought processes in innovative ways” thus making us superior in terms of intelligence and
Page | 220 understanding. Man has completely changed the environment by technological and infrastructural development making human life considerably easier and for all this development, man has exploited animals in almost every way possible. The environment we have built has left animals more dependent on us than ever before. Man being the more intelligent being use animals for his own benefit and thus it should also be the duty of man to take care of animals and act as parents of animals for their welfare and sustenance.
3. Upholding constitutional provisions – i) Fundamental Rights- Article 21- Protection of Life and Personal Liberty
“No person should be deprived of his right of life or personal liberty except according to procedures established by law.”
In the case of Animal Welfare Board of India vs. A. Nagaraja and Ors. , the learned Bench comprising of Hon’ble Justice K.S. Radhakrishnan and Hon’ble Justice Pinaki Chandra Ghose held-
“Every species has a right to life and security, subject to the law of the land, which includes depriving its life, out of human necessity. Article 21 of the Constitution, while defending the privileges of people, secures life and "life" has been given an extended definition and any unsettling influence from the essential condition which incorporates all types of life, including animal life, which is vital for human life, fall inside the significance of Article 21 of the Constitution. So far as animals are worried, in our view, "life" signifies something more than negligible survival or presence or instrumental incentive for people, however to lead a life with. So far as animals are concerned, in our view, “life” means something more than mere survival or existence or instrumental value for human-beings, but to lead a life with some intrinsic worth, honor and dignity.” In this case, the scope of Article 21 was extended to cover the life of animals as well. ii) Fundamental Duties-
• Article 51A(g): “To protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion towards living creatures.”
Page | 221 • Article 51A(h): “To develop the scientific temper, humanism and the spirit of inquiry and reform”
These are the duties of the citizens imposed by the Constitution on them. The makers of the constitution carefully imposed these duties to ensure the well being of animals by directing the citizens to have compassion and humanism towards animals. iii) Directive Principles Of State Policy-
• Article 48: “Organisation of agriculture and animal husbandry The State shall endeavour to organize agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.”
• Article 48A: “Protection and improvement of environment and safeguarding of forests and wild life The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.”
4. Inadequacy of statutory provisions- Animals in India are treated as property and thus treated as inferior to human beings which is evident in the penal provisions of Prevention of Cruelty to Animals Act,1960 in which maximum fine that can be imposed on persons doing cruelty to animals is a sum of Rs. 50 only. PCA is the primary legislation in India dealing with animal welfare has not been amended since its passing in 1960. The act is ineffective in present scenario as the cases of animal brutality are increasing every day and the act hasn’t been able to control such incidents as the existing penal provisions are very inadequate.
5. Failure of legislature to enact better legislations – Due to the inadequacy of PCA Act, many other bills have been introduced in the parliament but are lying in the cold storage due to the inability of the legislature to pass the bills, some of those are mentioned under- i) Animal Welfare Bill, 2011- It was introduced in the parliament to replace the present PCA Act. The bill proposed harsher penalties extending upto Rs. 25000 and also widened the scope of cruelty by introducing more activities amounting to cruelty.
Page | 222 ii) Animal Welfare Bill, 2014- After A. Nagaraja case, Animal Welfare Board India drafted the Animal Welfare Bill, 2014. “The bill was drawn out by Animal Welfare Board of India and submitted to the Ministry of Environment, Forest and Climate Change.” It contains more strict penalties than P.C.A. Act. Despite of the efforts of various animal right activists, the bill hasn’t been passed yet. iii) Private Members Bill, 2016- “On August 5, 2016, BJP MP Poonam Mahajan, moved a private member’s bill in the Parliament seeking an amendment to the PCA, incorporating stringent penalties and making all offences under Section 11 of the PCA, cognizable offences. However, the chances of this Bill being passed also seem bleak, considering the fact that it is a private member bill. Over the years, a large number of private member bills have been introduced in parliament. However, till date only 15 private member bills have been passed. This is because only half a day is reserved in a week for private member business, and thus, a majority of private member bills do not even get debated in parliament. Besides, private members generally end up withdrawing their Bills at the behest of the Ministry, mostly without extracting an assurance that the government will introduce a similar bill.”
6. An example of ‘Judicial Activism’-The Hon’ble Justice Rajiv Sharma has shown an exemplary case of judicial activism and has set a remarkable precedent by granting legal status to animals. The Hon’ble Justice Rajiv Sharma has also fulfilled his duty as held in the A.Nagaraja case- “Court has a duty under the doctrine of parents patriae to take care of the rights of animals, since they are unable to take care of themselves as against human beings.”
CONCLUSION-
In the year 2012-2017, around 19028 matters of animal cruelty were registered in Mumbai but there were no arrests made due to outdated and insufficient penal provisions of Prevention of Cruelty to Animals Act, 1960. The Legislature has failed miserably in implementing animal welfare legislations thus amounting to increasing number of animal cruelty incidents but the stance of the Judiciary in this matter has been more than satisfying. The Judiciary has given many admirable judgments in the interest of the animals and the laudable judgments given by
Page | 223 Honb’le Justice Rajiv Sharma have been a notch in the belt. Legislature has been unable to secure quality welfare laws for animals despite the recommendations by Hon’ble Supreme Court in A.Nagaraja Case-“ Parliament is expected, would elevate rights of animals to that of constitutional rights, as done by many of the countries around the world, so as to protect their dignity and honour.” The laudable judgments of granting legal status to animals in the states of Uttrakhand, Punjab and Haryana will act as a very important legal precedent in the times to come.
NATIONAL AND INTERNATIONAL COMMERCIAL ARBITRATION: A JUXTAPOSITION
BY: HEENA JAIN
ABSTRACT
Arbitration is often used to resolve disputes related to commercial transactions, particularly international commercial transactions owing to ever so evolving international trade and commerce across the borders. Arbitration is perceived as a dominant method of resolving International trade disputes as it is expeditious in nature as compared to formal court proceedings
Page | 224 and can be enforced in other countries. In recent past, upsurge in globalization and international trade has paved way for commercial contracts between Indian & Foreign Companies. These commercial contracts are becoming more international in character owing to a global integration.
Increasing competitiveness often leads to conflicts between entrepreneurs resulting in commercial disputes between the parties obliged by commercial contracts. Foreign investors have acknowledged Arbitration as an effective dispute resolution mechanism as it can achieve equitable solutions more swiftly as compared to formal court procedures, it is cost effective, it is confidential and allows the parties to decide seat of Arbitration proceedings. Hence, it is the need of the hour to ensure restricted judicial intervention in the Arbitration seated outside India. This articles deals with the current judicial position of national and international commercial arbitration with a focus as to position in India.
INTRODUCTION
The modern view is that arbitration is governed by the law of the place in which it takes place. Therefore, in that sense every arbitration taking place within a State is a domestic arbitration in that State. However, many States draw a distinction between arbitrations that are considered to be domestic and those that are considered to be international. One of the consequences may be that the types of disputes that may be submitted to arbitration are different in an international arbitration. For example, in some States claims of anti-trust violation may be submitted in an international arbitration but not in a domestic arbitration. Similarly, some States permit the State or State entities to enter into valid arbitration agreements only if the arbitration would be international. Finally, following the lead of the Model Law, many States have different laws governing domestic and international arbitrations. It follows that the distinction between domestic and international arbitrations is a matter of national law. There is no generally accepted distinction and there does not need to be since the New York Convention applies to “foreign” awards.
Foreign arbitration and international arbitration are not the same. An arbitration that takes place in State A is a foreign arbitration in State B. It does not matter whether the arbitration is
Page | 225 commercial or non-commercial or whether the parties are from the same country, from different countries or that one or all are from State A. Since even a domestic arbitration in State A is a foreign arbitration in State B, the courts of State B would be called upon to apply the New York Convention to enforcement of a clause calling for arbitration in State A and to the enforcement of any award that would result. In some legal systems the courts will not come to the aid of a “foreign” arbitration by way of aiding in the procurement of evidence, granting interim orders of protection or the like. However, many modern arbitration laws provide that the courts will aid arbitrations taking place in a foreign State.
Applying Part I Provisions to Arbitrations Exclusively Governed by Part II: Extending the Scope of Judicial Intervention
As mentioned above, the 1996 Act limits judicial intervention to only matters expressly stated in the Act. Generally, judicial intervention is narrowly tailored to situations in which the court’s involvement is necessary to assist the arbitral process. In that respect, the 1996 Act clearly reproduces the Model Law. Yet, with respect to judicial intervention, the Act departs from the Model Law in a discreet way, whereas the Model Law applies only to international commercial arbitration, the 1996 Act pertains to international, foreign, and domestic arbitrations.
This has given rise to certain complications and uncertainties regarding the 1996 Act’s scope- particularly those related to the granting of interim measures by national courts in the perspective of international commercial arbitrations.
Part I of the 1996 Act governs only those arbitrations seated in India. This includes arbitrations considered as international commercial arbitrations pursuant to Section 2(1) (f), as long as the seat is within the Indian Territory. Accordingly, Section 9, that provides for interim measures and mirrors the Model Law’s approach, applies to domestic arbitral proceedings. Although Article 1(2) of the Model Law mentions that its provisions “apply only if the place of arbitration is in the territory” of the State, it also makes certain exceptions and clarifies that this limitation of the scope of the Model Law does not apply to other articles. In fact, the other articles of the Model Law affects to international arbitrations, even where the seat of arbitration is abroad. There is therefore a substantial difference between the Indian court’s involvement through
Page | 226 interim measures-limited to domestic arbitrations-and the Model Law provisions which allow the issuance of interim measures to arbitral proceedings situated outside the court’s country.
This distinction is further illuminated by Part II of the 1996 Act that fails to provide for interim measures. Reading the plain language of the 1996 Act essentially results in the understanding that issuance of interim measures is strictly limited to arbitrations situated in India-Indian courts will not have jurisdiction to issue interim measures to support an arbitration whose seat is outside India.
The question of whether Section 2(2) stripped Indian courts’ jurisdiction to issue interim measures in international commercial arbitrations held outside India was decided in the landmark case of Bhatia International v Bulk Trading S.A . In Bhatia, the Supreme Court attempted to settle the ambiguity of Section 2(2) by taking the strong view that despite its contrary wording, the entire Part I of the Act was also applicable to international commercial arbitration held outside India, thus indisputably going against the conceptual and architectural segregation established by the 1996 Act between foreign and domestic arbitrations.
To support its holding, the Court reasoned that it was important to determine whether the language of the 1996 Act was as plain and unambiguous as to admit only one interpretation. Yet, finding that the language was ambiguous, the Court engaged in a lengthy discussion regarding the purpose of the 1996 Act, reasoning that “the conventional way of interpreting a statute is to seek the intention of its makers.” What seems to be the influencing factor behind the Court’s decision is its idea that adhering to the plain language of the 1996 Act would culminate in untenable results. Thus, the Bhatia judgment provided that Part I—meant to deal with domestic arbitration in India—is applicable to arbitrations located outside India.
Although the intention of the court may have been to assist arbitration by rectifying the irregularity between the Model Law and the 1996 Act, it might have gone too far in expanding the scope of Part II by making Part I applicable to arbitration outside the territory of India. The decision of the Court is in strike contrast to the Model Law considering that the Model Law itself does not contemplate granting such wide powers to the national courts.
Page | 227 The UNCITRAL Model Law — Article 9:
Article 9 of the UNCITRAL Model Law that deals with arbitration agreements and interim measures granted by courts lays down as under:
‘It is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant such measure’.
Article 9, as can be seen, is expansive for it allows a party to request from a court for an interim measure of protection, without restricting such measures to ‘the subject matter of the dispute’, as it is in the case of Article 17 meaning thereby that under the UNCITRAL Model Law courts may order any measures including pre-award property attachments, preservation or sale of the subject matter or third party compliance etc. Also, the Article 9 of the Act lays down that granting of an interim measure by a court does not negate the applicability of an arbitration agreement and is not contrary to the intention of parties agreeing to submit a dispute to an arbitration proceeding. Thus no party can turn back and nullify an arbitration agreement on the ground that a court taken on the dispute for the limited purpose of granting interim measures under Article 9.19
However, unlike the Indian Act, Article 9 does not provide for a specific time prior to the commencement of the arbitration when a dispute may be referred to a court. But being a facilitating rule, it must thus be interpreted in such mariner as would assist its operation and not be so construed as to debar such prior referrals as allowed under the Indian Act.
Section 9 of Arbitration and Conciliation Act,1996 as an Exception to Section 5:
Section 5 of the Act no doubt forbids any intervention by any judicial authority by the Courts, but any such exclusion of jurisdiction is only in such matters, which otherwise are not specifically provided for in the agreement. In this respect, Section 9 of the Act is, certainly an exception to the general rule contained in Section 5 in as much as the former specifically empowers the Civil Court concerned to pass suitable orders on the subject and in relation to matters stipulated in the same. Therefore, there is no merit in the contention that Section 5
Page | 228 would exclude the jurisdiction of the Civil Court otherwise competent to entertain applications and pass orders in regard to the stipulated mailers under Section 9 of the Act.
The Bombay High Court in Nimbus Television & Sports Vs D G Doordarshan opined that if the interim relief prayed for u/s 9 would amount to granting final relief frustrating the arbitration proceedings such a relief cannot be granted by the court.
In Navbharat Ferro Alloys Ltd. v Continental Glass Ltd. , the Delhi High Court held that when the claim is for recovery of money, in that case the sale of the goods cannot be ordered as an interim relief. It is however accepted that an order of interim measure of protection can be passed by a competent court for sale of property where such property forming the subject mailer of the dispute is perishable in nature.
Ambiguity Caused by Interpretation Provided by Supreme Court
Although Section 2 clause 2 provides that Part I shall apply only when the place of arbitration is India.
But, SC in Bhatia International V Bulk Trading, laid down that in cases of international commercial arbitrations held out of India provisions of Part I would apply unless the parties by agreement express or implied, exclude all or any of its provisions.
The basic rules of interpretation say that: “If the words of statute are in themselves precise and unambiguous, then nothing more shall be necessary than to expound those words in their natural and ordinary sense. In such case, the, words themselves best declare the intent of the lawgiver”.
The results of such construction are then, not a matter for the court, even though they may be strange or surprising, unreasonable or oppressive.
The SC in M V Joshi v M U Shimpi laid down the fundamental principle of interpretation in form of a primary test: the language employed in the Act and ‘when the words are clear and plain the court is bound to accept the expressed intention of the legislature.
Page | 229 The courts cannot support the legislature’s defective phrasing of the Act; they cannot add or mend or by construction make up deficiencies which are left there.
Similarly, it is wrong and dangerous to proceed by substituting some other words for words of the statute. Speaking concisely, the courts cannot reframe the legislation for the very good reason that it has no power to legislate.
By interpreting Sub-Section 2 of Section 2 in this manner so as to apply Part I of the Act to arbitration held outside India, the SC has created a case of Casus Omissus which means that a matter which should have been, but has not been provided for in a statute cannot be supplied by courts, as to do so will be legislation and not construction.
Indeed, it is very difficult to understand the interpretation of SC of the scope of Section 2(2). No rule of interpretation permits Section 2 (2) being read in a different way merely because the word “only” has not been used. If this notion is accepted, then the courts would be at liberty to give different interpretations to several definitions merely because a particular word or meaning was not preceded by “only”.
It is submitted by the researcher that Bhatia and Joshi cases have, instead of resolving the issue, created more confusion with regards to seat of arbitration in dispute involving International Commercial Arbitration.
Legal Impediments Caused by Legislative Provisions Relating to International Commercial Arbitration
The prominent role of national courts in international arbitration has been recognised in almost every country, some more than the others. This is because arbitrations are regulated pursuant to national laws and, accordingly, have a close relationship with the national courts. It has been suggested that the role of the court is akin to that of an ‘executive partner’ to provide greater effectiveness to arbitral proceedings. Lord Mustill reiterated this point in Coppée Levalin N.V. v Ken-Ren Fertilisers & Chemicals when he said: ‘there is the plain fact, palatable or not, that it is
Page | 230 only a court possessing coercive powers which could rescue the arbitration if it is in the danger of foundering.’ Although national courts play an important role at different phases of the arbitral process, their role is perhaps most prominent once the arbitral award has been rendered. This is particularly true at the enforcement stage where the arbitral award must survive certain statutory conditions for it to be successfully enforced. Once an arbitral award has been rendered, national courts may refuse to enforce it based on one of the grounds specified in Article V of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (popularly known as the ‘New York Convention’). These conditions have been incorporated in the national legislation of most countries signing the New York Convention and adopting the UNCITRAL Model Law.
Since arbitration is a private process, the rationale behind these supervisory powers is to safeguard the basic elements of fairness and impartiality and has been described as a: ‘bulwark against corruption, arbitrariness, bias, improper conduct and— where necessary—sheer incompetence.’ It has been argued by supporters of delocalised arbitrations that this review process acts as a further tier of review and is contrary to the parties’ intention when signing the arbitration agreement. However, there is little doubt that the court’s supervisory powers in this respect are necessary as it provides the arbitral process with a procedure of ‘checks and balances’ to ensure a fair and impartial process. Article V of the New York Convention safeguards the fundamental rights of the parties in international arbitration. It allows parties to challenge the enforcement of arbitral awards on various grounds.
In relation to these grounds, Professor Berg in the most authoritative commentary on the New York Convention stated:
‘In fact, the grounds for refusal of enforcement are restricted to causes which may be considered as serious defects in the arbitration and award: the invalidity of the arbitration agreement, the violation of due process, the award extra or ultra petita, the irregularity in the composition of the arbitral tribunal or the arbitral procedure, the nonbinding force of the award, the setting aside of the award in the country of origin, and the violation of public policy.’
As a result of the New York Convention, it is clear that parties are able to challenge the enforcement of arbitral awards relying on one of the specific grounds mentioned therein. One
Page | 231 such ground relates to the country’s public policy, which forms the subject matter of this article and is considered in the next section.
Public policy and the approach of national courts
Public policy is one of the most prominent ground mentioned in the New York Convention based on which a party can challenge the enforcement of a foreign arbitral award. The notorious nature of public policy is not an innovation of the modern age. From the beginning of the 21st Century, parties have been warned against relying on public policy: ‘public policy … is a very unruly horse, and when once you get astride it you never know where it will carry you. It may lead you from the sound law. It is never argued at all but when other points fail.’ Public policy is one of the most important weapons in the hands of the national court which allows it to refuse enforcement of an arbitral award which is otherwise valid. It is particularly notorious since this defence is incapable of being precisely determined and is entirely dependent upon the laws of individual states for its application. As a result, it varies from one state to another. Adding to this is the fact that the New York Convention does not provide any guidance for the national courts as to how the public policy defence should be interpreted. As a result, national courts may interpret public policy entirely at their own discretion and much will depend on the attitude of the national court and the particular judge at the time. In order to deal with this problem, the International Law Association (ILA) tried to formulate a universally accepted concept of international public policy but failed to do so since it was unable to reach a consensus as to what should constitute international public policy. Despite the pending uncertainty of this topic, it has been seen that, in most developed arbitral jurisdictions, public policy has been interpreted narrowly by the national courts. This is because the courts of developed jurisdictions generally bear a pro-enforcement attitude towards arbitral awards which they consider to be a stand-alone element of public policy itself. It has been explained as follows: ‘Interpretation and application of the public policy exception in most jurisdictions is usually on the side of enforcement. This is termed in international arbitration parlance as the pro-enforcement bias. Pro-enforcement is itselfa public policy.’ This pro-arbitration attitude of national courts is most apparent in the developed arbitral jurisdictions such as the US and France.
Page | 232
The US approach
From a long time, the US courts have taken a conservative approach to interferences with international arbitration and the issue of public policy. The seminal case highlighting the American pro-arbitration public policy is the case of Scherk v Alberto-Culver Co. In enforcing the arbitration agreement, the Supreme Court held:
‘The invalidation of such an agreement in the case before us would reflect a parochial concept that all disputes must be resolved under our laws and in our courts. We cannot have trade and commerce in world markets and international waters exclusively on our terms, governed by our laws, and resolved in our courts.’
The case of American Construction Machinery & Equipment Corporation Ltd. v Mechanised Construction of Pakistan Ltd.is another example of the US courts’ pro-arbitration attitude. In that case, the Southern District of New York ignored the fact that a Pakistani Court had declared both the arbitration agreement and the ICC arbitral award invalid. Rather than setting aside the arbitral award, the Court stated that the American public policy would be violated if the arbitral award was not enforced. This case is particularly important as it highlights the US courts’ proarbitration attitude overriding considerations of comity. In relation to public policy and the enforcement of arbitral awards, the Second Circuit decision in Parsons & Whittemore Overseas Co., Inc. v. Société Générale de l'Industrie du papier (RAKTA), is seminal. In Parsons & Whittemore, the US based appellant (Parsons & Whittemore) was unsuccessful in restraining an Egyptian corporation (RAKTA) from enforcing an award arising out of an arbitration which had taken place under the ICC Rules.
The matter eventually went to the Court of Appeals, Second Circuit where Smith J delivered the judgment of the Court. Smith J stressed on the general pro-enforcement bias present in the New York Convention and unequivocally held that a court may only refuse to enforce a foreign arbitral award under the public policy defence:
‘where enforcement would violate the forum state’s most basic notions of morality and justice.’
Page | 233 In particular, Smith J noted that an expansive construction would vitiate the New York Convention’s basic effort to remove obstacles to enforcement. Smith J said: ‘To read the public policy defence as a parochial device protective of national political interests would seriously undermine the Convention’s utility.’ In International Navigation Ltd. v Waterside Ocean Navigation Co Inc, the Court of Appeals, Second Circuit, confirmed that the public policy defence must be interpreted in light of the overriding object of the New York Convention. The Court followed the Scherk case in holding that one of the main purposes of the New York Convention was to unify the standards by which foreign arbitral awards are to be enforced. The Court also applied the Parsons & Whittemore rationale and held that the public policy defence should apply only where enforcement of the award would violate the basic notions of morality and justice of the forum state.
These decisions of the US courts have all taken a restrictive approach in relation to the public policy defence. They have made it clear that any interference by the national court in international arbitration on this ground should be minimal and that the public policy defence under the New York Convention should be interpreted narrowly. The attitude and position of the US courts have not changed since the Parsons & Whittemore case as can be seen from the decision of the Southern District of New York in Telenor Mobile Communications v Storm LLC.
In Telenor Mobile Communications, the Court rejected the argument that public policy required the court to decline to enforce a foreign arbitral award where the award had been overturned by a foreign court that colluded with one of the parties. In this connection, the Court noted that, to refuse enforcement, the decision would have to directly contradict the foreign law in such a way to make compliance with one a violation of the other. The Court placed great emphasis on the public policy argument in favour of encouraging arbitration and enforcing arbitration awards. It is clear from the above that the American public policy is clear and unambiguous. In the US, the aim of promoting international arbitration and international business relations consistently outweigh public policy concerns in the enforcement of foreign arbitral awards. The position is similar in France where the courts have also maintained a conservative approach in refusing enforcement of arbitral awards on grounds of public policy.
Page | 234 The French view
Before French case law is considered, it is important to note the landmark decision of the European Court of Justice (‘ECJ’) in Eco Swiss China Time Ltd. v Benetton International N.V. This is because the ECJ jurisprudence has an important effect on French case law in relation to public policy and the enforcement of arbitral awards.
In the Eco Swiss case, the European Court dealing with questions submitted to it by the Supreme Court of Holland in the context of an action to set aside an award held: ‘it is in the interest of efficient arbitration proceedings that review of arbitration awards should be limited in scope and that annulment of or refusal to recognise an award should be possible only in exceptional circumstances.’ Moreover, in the European context, Professor Schlosser clearly said that: ‘The recourse to public policy is only justified where the nonconformity with basic principles of morality and justice … is evident.’ This test, which is similar to the one applied in Parsons & Whittemore, has been consistently applied by national courts in Member States in relation to enforcement proceedings. In line with this approach, the French courts have generally maintained a very conservative approach in interpreting the public policy defence. In Gallay v Fabricated Metals , the Paris Court of Appeals refused to set aside an award based on a purported violation of European competition law. The Paris Court of Appeals stated that the arbitrators had addressed the issue and had decided that there was no violation. In some cases, the French courts have drastically limited the very scope of public policy.
The decision of the Paris Court of Appeals in Thalès v Euromissile is a good example of this. In that case, the award ordered Thalès to pay damages to Euromissile in a dispute concerning a licence agreement. None of the parties had argued that the agreement was incompatible with European competition law before the arbitral tribunal. Later, Thalès applied to have the award set aside on the ground that, inter alia, the agreement breached European competition law. As a result, the award which gave effect to the contract violated public policy.
The French court, referring to the Eco Swiss case, took a narrow approach on the public policy issue and refused to grant the request. According to the court, the public policy exception could only be invoked in circumstances where the enforcement of the award would be contrary to the French legal order or would entail the violation of a fundamental rule of law. Moreover, in
Page | 235 relation to the review of the arbitrator’s decision, the French court in the Thalès case made it clear that it cannot, in the absence of fraud, carry out an examination of the merits as it would interfere with the finality of the arbitrator’s decision. This position was confirmed recently by the Paris Court of Appeals in the SNF/CYTEC case, where the court held that at the enforcement stage, the national courts should only exercise an extrinsic review of the award. The court made it clear that, in the absence of a flagrant breach of public policy, there was no reason to substitute the court’s view in place of the arbitrators. The US and the French decisions paint a pleasant picture where interferences by national courts with arbitral awards under the guise of public policy are considered to be a form of taboo and, unless strictly necessary, national courts are reluctant to interfere with a valid arbitral award on grounds of public policy. Unfortunately, the situation is not the same in India and some recent decisions of the Indian Supreme Court paint a completely different picture. This is particularly important for the international community and arbitration users given India’s economic rise in the global markets and frequent involvement of Indian parties in cross-border transactions. In recent times, India is considered to be the 4th largest economy with regard to GDP at PPP, and 12th largest economy in terms of nominal GDP.
Economic reforms have made India into one of the fastest growing countries of the world in current times. In line with its economic liberalisation strategy in 1991, the Indian Arbitration and Conciliation Act 1996 (the ‘Indian Arbitration Act’) was introduced with a view to modernise Indian arbitration law and align it with international practice. Although these initiatives were seen as a welcome change by the international business community, recent decisions by the Indian Supreme Court on the misinterpretation of the Indian Arbitration Act have raised serious doubts as to India’s progress in the field of international arbitration. This issue is particularly alarming in the public policy context and will be considered next.
The Indian Position
In relation to the position of arbitration in India before the Indian Arbitration Act was introduced, Professor Paulsson once said: ‘… the courts of India have revealed an alarming propensity to exercise authority in a manner contrary to the legitimate expectations of the international community ….’ In line with the ethos of the UNCITRAL Model Law, the Indian Arbitration Act
Page | 236 was introduced with the hope that there will be minimal judicial intervention in the arbitral process. Despite this, the Indian courts have shown a great propensity towards interfering with international arbitration. In this connection, judicial intervention at the award enforcement stage on grounds of public policy is the most controversial. There is little doubt that the Indian Supreme Court decision in Renusagar v General Electric has always been the starting point whenever one considers the topic of Indian court intervention on grounds of public policy. In that case, the Supreme Court made it clear that: ‘Applying these criteria it must be held that the enforcement of a foreign award would be refused on the ground that it is contrary to public policy if such enforcement would be contrary to
(i) fundamental policy of Indian law; or
(ii) the interests of India; or
(iii) justice or morality.’
This decision was based on private international law and was in line with international practice commonly accepted in most developed arbitral jurisdictions such as the US and France, as discussed above. This decision confirmed the position that, only in exceptional circumstances, should the national courts interfere with arbitral awards on grounds of public policy. Also, the Supreme Court clearly held that the courts should not use the public policy defence to review the merits of an arbitral award. However, in contrast to its earlier decision in the Renusagar case and disregarding the commonly accepted principles of public policy, the Indian Supreme Court took a different approach in Oil & Natural Gas Corp v Saw Pipes and misinterpreted the public policy defence. The case of Saw Pipes arose out of a domestic dispute concerning the payment of liquidated damages under a supply contract. The matter was referred to arbitration and an award was rendered by the tribunal which held that ONGC was not entitled to any liquidated damages since it had failed to establish any loss as a result of the late supply by Saw Pipes. ONGC applied to set aside the arbitral award before the Indian court on grounds of public policy. In that case, the Indian Supreme Court held that the ground of public policy was required to be given a wider meaning than in the Renusagar case because the concept of public policy connoted matters which concerned public good and public interest. The Supreme Court noted that, as a matter of law, ONGC was not required to prove its loss and, therefore, was entitled to the liquidated damages.
Page | 237 As a result, the Supreme Court set aside the award on grounds of public policy on the basis that the arbitral tribunal had erred when it concluded that ONGC had to prove its loss in order to seek liquidated damages. The Supreme Court felt that an award which violated the law could not be said to be in the public interest, because it was likely to adversely affect the administration of justice. The Indian Supreme Court held that, in addition to the three heads set forth in the Renusagar case, an arbitral award may be set aside on grounds of public policy if it is patently illegal. It held that an award was patently illegal if the award was contrary to the substantive law, the Indian Arbitration Act and/or the terms of the contract. The effect of this was that these included any error of law committed by the arbitrators.
The case of Saw Pipes has been criticised by many distinguished commentators. It has been widely condemned for its wide interpretation of the public policy defence. The Indian Arbitration Act does not include error of law as a ground for setting aside arbitral awards and it has been widely accepted in India that an arbitrator’s decision cannot be reviewed on such grounds. By clearly stating that the public policy ground includes errors of law by the arbitral tribunal, the Saw Pipes case went beyond the scope of the Indian Arbitration Act and created a new ground for setting aside arbitral awards. By bringing errors of law within the ambit of public policy, the Indian courts have created a backdoor to review the merits of an arbitrator’s decision, which is in clear contravention of arbitration law and practice. Also, as a result of the Saw Pipes case, more parties will now be able to challenge arbitral awards on grounds of public policy before the Indian courts. In effect, this will flood the Indian courts with claims by the losing party unhappy with the arbitral tribunal’s decision. The case of Saw Pipes is particularly worrying for the international community since the Indian Supreme Court did not expressly exclude foreign awards from its reasoning. Moreover, in Bhatia International v Bulk Trading, the Supreme Court held that provisions of Part 1 of the Indian Arbitration Act (which applies to domestic arbitrations only) would also apply to foreign awards under Part 2 of the Indian Arbitration Act, unless specifically excluded by the parties. The case of Bhatia generated much debate since it reversed the accepted position that Part 1 of the Indian Arbitration Act would not apply to international arbitration. This meant that parties, relying on Bhatia, could use the ‘patently illegal’ ground of public policy added by Saw Pipes to resist enforcement of foreign arbitral awards.
Page | 238 In 2008, the Indian Supreme Court, extending its earlier decision in the Bhatia case, held that a foreign arbitral award could be set aside on grounds of public policy as formulated in the Saw Pipes case. The Satyam case has severely hampered India’s progress towards establishing itself as an arbitration friendly jurisdiction. The case of Satyam concerned a joint venture dispute which ended up in an international arbitration seated in London. An arbitral award was rendered in favour of Satyam which Satyam sought to enforce in the US. In the meantime, Venture Global filed an application to set aside the foreign award before the Indian courts on grounds of public policy. The matter went all the way before the Indian Supreme Court which held that even though there were no provisions in Part 2 of the Indian Arbitration Act providing for challenge to a foreign arbitral award, a petition to set aside the same could lie under Part 1 of the Indian Arbitration Act. The Indian Supreme Court held that the losing party could bring an independent action in India to set aside a foreign arbitral award on the expanded grounds of public policy as set out in the case of Saw Pipes.
The Satyam case has been described by Nariman, one of India’s most renowned arbitrators, as simply ‘inexplicable’ and one which ‘cannot be defended’. Cases like Saw Pipes and Satyam demonstrate the Indian court’s approach on the issue of public policy and arbitral awards. It seems that the Indian courts have consistently misinterpreted the provisions of the Indian Arbitration Act in a manner contrary to the spirit of the New York Convention. These decisions have caused a great deal of anxiety for the international community involved in business with an Indian connection, who generally prefer the quick disposal of their disputes through arbitration rather than engaging in lengthy litigation before the Indian courts. More recently in 2010, the Bombay High Court in Western Maharashtra Development Corporation Ltd. v Bajaj Auto Ltd, relying on the ONGC case, set aside an arbitral award on the ground that it was contrary to the substantive provisions of law and, as a result, patently illegal. In deciding whether the court should interfere with the award, the Bombay High Court analysed the Supreme Court decision in the Saw Pipes case and held that the award could be set aside on grounds of public policy. The Bombay High Court felt that, inter alia, the arbitrator did not apply the provisions of the Indian company law correctly and, as a result, the award contradicted the substantive provisions of law and was patently illegal. This decision highlighted yet another example of undue court intervention under the guise of public policy. Although rendered in the domestic context, so long
Page | 239 as cases like Bhatia remain in place, the approach taken by the Indian court in Western Maharashtra Development Corporation Ltd. pose a serious threat to international arbitration with an Indian connection. These decisions have sparked a considerable amount of controversy and anxiety both onshore and offshore with legal practitioners worldwide noting that such decisions, if left unaddressed, would heavily tarnish India’s image internationally.
These decisions, in effect, took India back to England’s pre-1979 period when the English courts could review the merits of the arbitrator’s decision through the case stated procedure thereby posing a serious barrier to the use and growth of international arbitration. The Government of India realised that the dispute resolution system needed to keep pace with its rapidly growing economy.
However, it seems that, with the beginning of this new dawn, the Indian courts have started showing due deference to arbitral awards. The most recent case on this issue signals a welcome change in the attitude of the Indian courts dealing with public policy and enforcement of arbitral awards. In Penn Racquet Sports v Mayor International Ltd., the Delhi High Court rejected a challenge to the enforcement of an ICC award, holding that the award was not contrary to the public policy of India. In reaching its decision, the Indian court held that the ground of public policy for the purposes of enforcement of foreign awards should be interpreted narrowly. The Delhi High Court held that to successfully invoke this ground, the applicant must show some cause which is more than a mere violation of Indian law. The arbitral award must violate the fundamental policy of Indian law or be contrary to the interests of India, justice or morality. In relation to public policy, this decision is considered to the most recent contribution by the Indian courts to help India regain the confidence of the international arbitration community. This decision along with the Government of India’s recent initiatives highlight the willingness of the Indian courts to tackle the problems of the past and bring the Indian arbitration law back in line with the approach taken in the Renusagar case, which is similar to the prevailing view in the most developed arbitral jurisdictions such as the US and France.
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Non Partisan Media- Linchpin of Democracy
Raksha HR & Nikhil Bhonsle Introduction
Information is vital for a democratic society. Since a democratic form of government stems from the people and for the people themselves, an informed population is essential to elect the right government that makes decisions in the interest of the country. Most political parties try to maintain a level of secrecy with regards to the information which is communicated to the public. In such a scenario, media plays an important role in gathering the information and communicating the same to the public which is essential, especially in a representative democracy where the informed choice of the people plays a crucial role in the administration and governance.338 Media is one of the most important ‘non-democratically’ organized forces that
339 have an impact on the politics, culture and perspectives of the society.
338Paterson M, 'The Media and Access to Government-Held Information in a Democracy.' (2008) 8(1) Oxford U Commw LJ 3 339 C. Edwin Baker, ‘Media Concentration: Giving up on Democracy’, (2002) 54 Fla. L. Rev. 839 Page | 241 The influence of media on certain social changes is a known factor. It influences the perceptions of individuals. The ‘social cognitive theory’ states that people learn by observation and instead of spending energy in learning for themselves through a trial and error method, they model the behaviour according to the consequences that they have seen in others.340 Especially in India watching television has influenced the change in behaviour in certain social issues such as strong preference of a male child and the use of contraceptives.341 This is important because the extent to which media has an impact on the masses also directly indicates the issues that are bound to arise due to a non-transparent or biased media which affects people in their conviction.
Media and freedom of speech and expression
The constitution of India, under chapter three provides several fundamental rights to its citizens; one among them is Protection of freedom of speech and expression under Article 19. Media enterprises not only enjoys the freedom of speech and expression guaranteed under Article 19(1) (a) but also the right to engage in any profession, occupation, trade, industry or business under article 19(1)(g).342Under article 19(1) (a) the media enjoys rights such as right to circulate, broadcast, advertise, criticize. One of the major reasons why democracy is considered as one of the favored form of government is because it allows dissent in informed, reasoned manner and criticism of the existing system if it does not serve the needs of its citizens.
In one of the recent events five activists were arrested for allegedly having connections with the banned CPI Maoists groups and having connections with the Bhima-Koregoan343 violence that happened on 1stJanuary 2018. They were accused of portraying and spreading intolerance towards the political system. The supreme court of India had ordered house arrest until the charge was filed. Justice Chandrachud while discussing the above case upheld the importance of dissent in India and held that ‘A clear distinction must be made between dissent, opposition and create disturbance, law and order problem, overthrow elected government’. Therefore, time and
340 Albert Bandura, ‘Social Cognitive Theory- An Agentic Perspective’2001. 52:1–26 Annu. Rev. Psychol. 341 Karishma Chatterjee, ‘Vijayan K. Pillai, Media Effects on Gender Child Preference in India’,(2018) 8 J. Res. Gender Stud. 108 342 Anahita Mathai, ‘Media Freedom and Article 19’( April 2013)< https://internetrights.in/wp- content/uploads/2014/05/Media-Brief.pdf> accessed 15thJune 2019. 343Prabodhan Bol, ‘Understanding Bhima koregaon’(15th June ,2019)
To what extent is the media in India transparent?
According to the complaints received by Grievance against Misleading Advertisements (GAMA) Portal relating to print and electronic media in India, the number has increased from 641 in the year 2015 to 3302 in the year 2017.344 This depicts the increase in the number of misleading or false information that is being circulated in the society. According to the ‘Press Freedom Index of 2018’ India ranks 138 among 180 countries. This is lower than certain Middle Eastern and
345 African countries.
Concentration of ownership by specific media houses which is known as cross media ownership has also lead to the decrease in plurality of opinions available to the public.346 The Telecom Regulatory Authority of India (TRAI) recognized this issue and put forth some recommendations for the same in “Consultation Paper on Issues relating to Media ownership.” Empirical evidence was provided in this paper which proved that cross media ownership is prevalent in India which. The report recommended that an entity that holds more than 32% market share in both print and electronic media must exit one of them or reduce the stake to 20% of the market share for a particular language and area. It also recommended the ban on ownership of media by political parties and a disclaimer for advertorial (news that has been paid for).347 However these suggestions have been strongly criticized for being against the right to freedom of speech and expression and right to work.348 Nevertheless, this issue is important to be addressed in order to ensure free dissemination of various opinions.
The transparency of media is directly linked to the ethics that has to be followed by the journalists. However, this is not followed by a significant part of the industry. The Niira Radia tapes is one such instance which will definitely remain as a black mark in the history of 344 Source- Lok Sabha Unstarred Question No. 2290, dated on 8.03.2018 345 Reporters without borders for freedom of information, 2018 World Press Freedom Index < https://rsf.org/en/ranking> last accessed 15th June 2019. 346 Singh S and Gupta A, 'Rationalising Architectural Censorship: Examining Trai's Recommendations of Cross Ownership of Media.' (2014) 7(2) NUJS L Rev 173 347TRAI, Consultation Paper on Issues relating to Media ownership (Paper No. 01/2013). https://trai.gov.in/sites/default/files/CP-Media_Ownership_final.pdf, Last accessed on 16th June 2019 348 Supra NUJS Page | 243 journalism in India since it involved process of educing information and means acquired to do the same.349 The tapes which were said to be recorded by the Income Tax department contains NDTV editor Burkha Dutt and Hindustan Times' Advisory Editorial Director Vir Sanghvi offering to mediate between the then ruling UPA government and the DMK in order to eliminate the mistrust between them. Both the journalists denied any wrong doing claiming that they were just trying to gather information from a source by stringing along with them to extract information.350 However trying to gather information from the source is different from securing cabinet portfolios, willingly showing self- interest and it is unethical to use their political influence in a calculated way to help companies that employ the lobbyist source.
Inaccuracy in reporting has been another major problem in India which can cause major problems when circulated. Amartya Sen in one of his articles gives several instances where different media houses had reported a piece of news in different manners. In a public discussion Amartya Sen had addressed a topic related to initiation of the lopkpal bill and had said that solution to the menace of corruption had to be sought with our democratic system itself. However different news channels had reported this in opposite ways, on one hand media houses like NDTV, Zee news headlined “Lokpal Bill well thought out: Amartya Sen” and on the other hand channels like Money control, The Telegraph headlined “Lokpal Bill not well thought out:
351 Amartya Sen”.
Influence of media on judicial decisions
The acquittal of the parents of Aarushi Talwar by the Allahabad high court has been contrary to what the media portrayed. The media played a major role in framing the Talwar parents. The media, even before the prosecution had proved the accused guilty had started to publish false news portraying the accused as indecent immoral unethical etc. When the trial began even
349 Akanksha kumar,’Radia Tapes: How one Woman’s Influence Peddling Led to a Snake Pit’(February 02,2018)< https://www.thequint.com/explainers/what-are-niira-radia-tapes-explained> Last accessed June 16th 2019 2018 350 Priscilla Jebaraj, ‘The spotlight is on the media now’(OCTOBER 22, 2016)< https://www.thehindu.com/opinion/lead/The-spotlight-is-on-the-media-now/ article13673240.ece>accessed 16th June 2019. 351 Aamartya Sen, ‘The glory and the blemishes of the Indian news media’(August 18,2018)< https://www.thehindu.com/opinion/op-ed/the-glory-and-the-blemishes-of-the-indian-news- media/article2781128.ece> accessed 16th June 2019. Page | 244 though CBI themselves were finding it difficult to prove the accused guilty beyond reasonable doubt some of the media houses made their job easier, evidences which were not found at the murder scene were made to appear in newspapers. Another national daily in its front page headlined ‘Only the parents could have killed Aarushi’ even before the court held them guilty.352 The propagation of an assumption which is not based on any evidence will lead to tarnishing the reputation of innocent persons as well as negatively impacting the court proceedings. Therefore it is pertinent to find viable solutions to deal with transparency, accountability and accuracy of media to ensure an informed society.
Towards improving media credibility
Efficient regulatory rules should be made on ownership in order to prevent handful media organizations controlling the entire media system. This can ensure competition, provide the citizens with different opinions and prevent a few parties from establishing monopoly which in turn will have an effect of molding public opinion.
There exists a dichotomy between imposing a restriction on media and the fundamental right to freedom of speech and expression. Even if laws are enacted to ensure a transparent media, they must not infringe upon this right. Policy making is solution towards ensuring unbiased media; however this must not infringe the above right. The solution lies in reconciling this clash and enforcing laws that provide for ensuring accountability of information given by the journalists. Right to Information Act of 2005 is of significant importance to the media because through this it becomes easier to obtain data about the functioning of the government and broadcasting the same to the public. However, this would be of no consequence if the media channels are externally influenced by the political parties as a tool to propagate news favoring their interests. This brings us to conclude that media must be detached from political influence in order to prevent manipulation of information. The Press Council of India which was established in the year 1966 as a statutory and quasi-judicial body has objectives which include ensuring freedom of press and improving its standards. It is necessary to redefine the functions of this body and ensure that the objectives are achieved
352 Shohini Ghosh, ‘Mistrail by media’(October 14 2017),< https://indianexpress.com/article/opinion/columns/mistrial-by-media-aarushi-talwar-murder-case- 4889249/> last accessed 16th June 2019 Page | 245 Recently there have been instances such as the murder of Gauri Lankesh353, where it is seen that the journalists have been ostracized for reporting certain information by the political parties. This is not the spirit of democracy where plurality of opinions is important. This creates a sense of agony within the minds of journalists and prevents them from reporting information which might be of public importance. Physical violence against journalists is the key reason for India’s low ranking, dropping down two places from 136 to 138 in the press freedom index. The safeguard towards this is the implementation of Rule of Law in order to ensure a pluralistic media environment.
On an ethical ground, it also involves the realization of self-responsibility by the media houses to circulate credible information in order to ensure goodwill among the public. Certain steps such as introducing a correction column in the newspapers which being followed by some newspapers need to be incorporated by all the media houses. This ensures accountability and accuracy of information. Thomas Jefferson has said that, “Information is the Currency of Democracy.” Since media plays an important role in democracy and acts an intermediary between the government and the people, it is definitely the fourth pillar of democracy. However, if it is not given absolute freedom of expression and autonomy from political influence, it becomes a direct threat to democracy.
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353Shubam Ghosh, ‘Gauri Lankesh murder: The problem is not rooted in our politics & ideology only; it's something about our democracy as well’(September 6,2017)
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“RAJDHARMA IN PROVIDING RIGHT TO HEALTH”
AUTHOR: ANSHIKA JUNEJA & AMISHA RERRU SINGH Abstract
The pace of development of a nation depends on the pace of development of its citizens. Since time immemorial efforts have been made to provide inalienable rights to the citizens so as to prevent them from the vicissitudes of life. One such effort has been in the direction of Right to health of the citizens. This paper traces the obligation of the state – “Rajdharma” in catering the health need of the citizens from the periods of Mahabharata, Kautilya to the obligations placed on the state in the post-constitutional era along with the public opinion on the same which pervades in this contemporary era.
RAJDHARMA: A PRODUCT OF LAVISH INDIAN MYTHOLOGY
The inception of the concept of ‘Rajdharma’ can be traced from the ancient Indian Sanskrit epic ‘The Mahabharata’ which was composed by Krishna – Dwaipayan Vyasa in the early Gupta period around 4th century BCE354. The Shanti Parva being the twelfth of the eighteen books of the
354 Mahabharata – Ancient History Encyclopedia by Amanita Basu, published on 25th August, 2016; available at: https://www.ancient.eu>Mahabharata; (Visited on June 2, 2019). Page | 247 Mahabharata embody the ideal virtues of the State polity such as Dandniti (The law of punishment), Rajdharma (The judicious duties of the king), Shasanpadhiti (The manner in which the king handles the affairs of the office), Mantri Parishada (The council of the king) and Kar – Vyavstha (The policies formulated by the king for the welfare of the subjects). It consolidated the philosophy of Rajtantra (King’s rule)355.
The concept of Rajdharma is an amalgamation of the extensive principles revolving around the conception of a State such as the rule of law, the notion of justice and the idea of welfare. The term ‘Rajdharma’ is derived from two Sanskrit words ‘raj’ meaning rule and ‘dharma’ meaning law in broad connotation thus Rajdharma means the rights and obligations embracing the boundary of a ruler in accordance with his administration.
In the early days of enlightenment, when the origin of Statehood was not recognized the law of ‘Matsyanyaya’ governed the society356. The law of Matsyanyaya states that in a pond the bigger and the stronger fish engulfes the smaller and the weaker one which ultimately leads to a lawless society. Thus, as a result of this excessive despotism of the powerful over the weak there is a need to establish a system of kingship. Therefore, Rajdharma developed as a means to provide the citizens or the subjects a code of conduct for peaceful co – existence in society and thereby laying emphasis on the obligation of the ruler towards its subjects and to regulate the arena of powers exercised by different wings of the State357.
The concept of Rajdharma in a broader sense defines the organization, powers and liability of the principle of hereditary succession of the kingship, the establishment of a system of justice where supreme authority rests with the king. The Mahabharata highlights the notion of Rajdharma in the tale of king Rantideva who was a responsible and abiding ruler and served the subjects duly and he was of the opinion that by keeping the subjects happy and contented he is pleasing Lord Vishnu358.
“All Dharmas are merged in Rajdharma, and therefore it is the Supreme Dharma359.”
355Sushma Garg, “Political ideas of the Shanti Parva” 65 IJOPS 78 (2004). 356Justice M. Rama Jois, Dharma – The Global Ethic 73 (Bharatiya Vidya Bhavan, Delhi, 1997). 357 Ibid. 358Ibid at 3. 359Ibid at 3 pg. 75. Page | 248 ‘The Manusmriti’ is considered to be the eternal fountain of codified moral standards which came to form the basis of many present day ideals. The ‘Laws of Manu’ are considered to be the classical work on the social and religious laws scribbled down in the first and second century BC360.
Manu states that the ultimate creator of all the living beings, the God established the system of kingship so as to afford security to the people against the mayhem caused due to lawlessness of the society361. A king must at all times follow the principles of Dharma in dealing with the matters of administration. The king must act like a patriarch to its subjects and must be present in times of need. Manu also provided that if the king goes against the moral norms set by the creator he is bound to be penalized. The judgment of the king is deemed to be the supreme law and if the adjudication of the king is unfair or biased it is considered to be a ‘great sin362.’ Manu was of the view that the king must be enriched with the ideals of loyalty, honor, courage, humility, transparency and legitimacy in decision – making and the welfare of the subjects (praja).
‘Kautilya’s Arthashastra’ inscribed down in the 4th century BC is also one of the prominent sources which represent the ideal of ‘Rajdharma’363. Kautilya, the Prime Minister of the Great Mauryan Empire is the author of the efficacious and voluminous text ‘Arthashastra’ which deals with a variety of subjects such as State politics, trade, justice, welfare etc364.
Kautilya referred to king as the foremost element while defining the sovereignty and autonomy of the State365. He is of the opinion that a king must idealize the virtues of leadership and management and must give the arena of national security utmost priority in times of need. He further lays emphasis on the system of administration of justice established. Kautilya upheld the
360 Chapter 2: A Glimpse of Vedic Ethical Values from Manusmriti by Ved Bhatia, posted on March 3, 2015; available at: https://ethicalvaluesinindianscripturesvedbhatia.com; (Visited on June 4, 2019). 361 Understanding Rajdharma by Pramod Pathak, posted on February, 2019; available at: https://www.dailypioneer.com; (Visited on June 4, 2019). 362Ibid. 363 Indian Political Thought: Arthashastra; available at: https://www.civilserviceindia.com.>notes; (Visited on June 5, 2019). 364 Arthashastra – Ancient History Encyclopedia by Cristian Violatti published on April 6, 2014; available at: https://www.ancient.eu; (Visited on June 6, 2019). 365 Kautilya’s Arthashastra – Translation by R. Shamasastry, available at: https://csboa.com>ebooks>Arthashastra; (Visited on June 6, 2019). Page | 249 opinion, ‘A king who administers justice in accordance with dharma, evidence, customs and royal edicts will be able to conquer the whole world366.’ According to the principles enunciated in the Arthashastra, Rajdharma embarked upon the relationship and harmony between three associations in a society i.e. the subjects (who are to be governed), the State (represented by ruler) and the ministers (appointed by the ruler for assistance and for execution of the policies)367.
RAJDHARMA IN CONCOCTION WITH RIGHT TO HEALTH: A HISTORICAL VISION
A. ANCIENT PERIOD
In the days of the Indus Valley Civilization particularly the pre – Vedic era (1500 – 500 BC)368, the values which have occupied a definite place in the society upheld the notion that illness could lead patient/sufferer on the path of destruction and the breakdown of all social ties from the sick. The society was of the opinion that the goals and aspirations of an individual can only be fulfilled if the individual is physically and mentally fit. The four ideals which formed the basis of society were369:
A system of protection for the weak. To provide food to the hungry. Impart education to the needy. Treatment to the sick and wounded.
The Vedic scriptures of India such as the Smritis also contemplate that a medical practitioner must render due and ideal treatment to the ill irrespective of the caste, status, gender of the
366Ibid at 12. 367Ibid at 13. 368Vedic Period – New World Encyclopedia; available at: https://www.newworldencyclopedia.org; (Visited on June 8, 2019). 369 History of Healthcare in India – The Golden Age of Medicine by Ishrath Humairah posted on April 6, 2010; available at: https://healthopine.com; (Visited on June 9, 2019). Page | 250 patient as the position held by a physician is considered supreme to other professions because of the honor attached to it. The Manusmriti also imbibe a similar conviction370,
“It is the duty of the king to cater to the needs of the infirmed and affected, sick and wounded, helpless and needy, pregnant women and the children.”
However, the period following the Vedic age particularly known as the later Vedic age (1400 – 600 BC)371, with the advent of Jainism and Buddhism the aspect of human dignity was more prominently recognized and the society became an intricate web of moral and social order. King Ashoka, the great who led the Mauryan dynasty and is a renowned propounder of the Buddhist religion made ayurveda as the official medicine and the imparting of medical education necessary among the subjects372.
The earliest Sanskrit text, Charaka Samhita which laid the foundation of Ayurveda in India and the origin of surgery under Sushruta Samhita codified the credentials of a physician373:
Study of the science of medicine. Practical experience to undertake the treatment of the sick. Capable to impart medical education. Prior approval of the king to undertake the profession of medical science.
Thus, education and awareness regarding the factum of sanitation and cleanliness became the sole responsibility of the king which at times is even carried in the palace courtyards and gardens. Therefore, the ancient era marked the potent role of the king in providing right to health to the subjects.
B. MEDIEVAL PERIOD The medieval era is also regarded as the ‘Mughal Reign’. Under the mughal emperors the Unani system of medicine (also known as the Arabic system of medicine) flourished and therefore with
370Ibid at 20. 371 Ritual growth in the later and post – Vedic times – an overview; available at: https://www.jstor.org>stable; (Visited on June 9, 2019). 372 Ashoka the Great – Ancient History Encyclopedia; available at: https://www.ancient.eu>Ashoka-the- great; (Visited on June 10, 2019). 373 Healthcare Scenario in India authored by Dr. S.K. Jawahar; available at: https://healthmanagement.org; (Visited on June 9, 2019). Page | 251 the advent of the new system the earlier science of Ayurveda which originated in the Vedic period diminished374. The Unani system was introduced in India by the Arab and Persian rulers in the 10th century A.D375.
During the ancient period, the treatment of the sick were mainly carried out in the temple premises but the medieval period saw the growth of hospitals with provisions of distinct wards for men, women, children and the aged, availability of medical pharmacist and a separate room for safe – keeping of patient’s record; all being maintained and regulated under the authority of the king376. The best illustration of the duty enshrined in the ideal of Rajdharma377 in providing right to health is ostensible in the incident when Jodha bai, the wife of Akbar used to disguise herself as a local of the kingdom and used to treat patients who became victims of the communicable diseases since the invention of sophisticated medicine and technology was not realized at that time.
Thus, the obligation which the king owes towards its kingdom was well entrenched in his duty to provide medical assistance to its subjects. This era saw remarkable growth in the field of health since the teachings of the Prophet and Islam recognizes the fact that taking care of one’s own body is one’s responsibility and if the person fails to do so the same would be undertaken by a superior authority. The notion of Islam on the aspect of health believes in ‘wholesomeness’ of three components the body, mind and soul378.
Under the authority of Muslim rulers, there was immense development of medicine and this is evident from the cities and towns of Delhi, Aligarh, Lucknow and Hyderabad where surgeons, pharmacists were seen in regular practice under the authority of the kingdom379. Thus, this period realized Rajdharma in providing Right to health since there were establishment of institutions for providing medical assistance (Hospitals), dissemination of personal code for hygiene among the
374 Right to Health in historical perspective – Shodhganga; available at: shodhganga.inflibnet.ac.in>bitstream; (Visited on June 10, 2019). 375 Origin and Development of Unani Medicine in India – National Health Portal of India; available at: nhp.gov.in>origin-and-development-of-unani-medicine-in-India; (Visited on June 10, 2019). 376Ibid at 25. 377 Women and Islam – Oxford Islamic Studies online; available at: www.oxfordislamicstudies.com>opr; (Visited on June 11, 2019). 378Ibid at 25. 379Ibid at 25. Page | 252 subjects, and organization of free checkup in the common area of the town/city with the permission of the ruler.
C. BRITISH PERIOD The Arabic system of medicine saw a downfall in the 18th century when British colonized India. The Britishers were largely concerned with the health and safety of the British Army personnel who were posted in India as a result of which they formulated the Quarantine Act, 1825380. In 1859, a Royal Commission was set up which further lead to the appointment of a Commissioner of public health in each of the provinces (Bombay, Madras and Calcutta) so as to provide for a regular and clean water supply, a system for prevention of diseases and a concrete drainage system381.
In 1858, the government of India undertook the decision that the aspect of sanitation shall be taken into account by the local bodies but due to the lack of funds it remained a mere decision but in 1912 the Indian government took the matters in its own hands and instructed the local bodies to appoint the Deputy Sanitary Commissioner to keep a check on the degree of sanitation in the concerned area382.
Moreover, the British period saw the emergence of a variety of legislations on the aspect of health and sanitation such as383 –
The Vaccination Act, 1880 Birth and Registration Act, 1883 The Epidemic Diseases Act, 1897 The Madras Public Health Act, 1939 The Drugs Act, 1940
This era also saw the establishment of a number of institutions and organizations such as in 1943 the government of India established the ‘Health Survey and Development Committee’ under
380Ibid at 25. 381 Public Health in British India: A brief account of the History of Medical Services and Disease Prevention in Colonial India by Muhammad Umair Mushtaq; available at: https://www.ncbi.nlm.nih.gov; (Visited on June 12, 2019). 382 Historical Development of Health care in India; available at: https://www.researchgate.net; (Visited on June 12, 2019). 383Ibid at 33. Page | 253 which a primary health care centre is to be instituted with a wide range of facilities and medical staff384. Moreover, in the nineteenth century universities of Calcutta, Madras and Bombay were formed so as to make medical education an important aspect of the ‘medical health and care’.
The period embracing British India saw a tremendous growth in the arena of right to health and aspired the Indians to view this aspect of human life in consideration with the ‘State responsibility’ where the authority rests with the State to provide and guarantee right to health to its citizens.
RAJDHARMA IN CONCOCTION WITH RIGHT TO HEALTH: THE CONSTITUTIONAL AMBIT
Considerable reliance is placed on the historical sources in enunciating the role played by Rajdharma in catering the needs of the masses. The Constituent Assembly vividly discussed the matter and embedded the duties and obligations on the state by two prominent mediums which are often characterised as the conscience of the Constitution and which are; 1. Fundamental Rights reflecting the negative obligations of the state and 2. Directive Principle of State Policy reflecting the positive obligations of the state. Rajdharma occupies the space in the betwixt of these two mediums. A. FIRST MEDIUM The first medium popularly known as the Magna Carta of India has a dual aspect. On one hand, they confer rights on the people which can be enforced against the government and on the other hand, they constitute restrictions and limitations on government actions, whether it is taken by the Centre/State/local government. Restrictions or limitations on the government in this modern era is one arm of the concept of Rajdharma. The reason for such consideration and inference is the objective behind the inclusion of Fundamental Rights in the Constitution which was to safeguard certain basic, inalienable and sacred rights of the people and to provide for a healthy environment for the overall development of the individual, and thereby inculcating the philosophy of Dharma in association with the role of the state.
384Ibid at 25. Page | 254 Article 21 Article 21 has always been in the limelight because of the application of the doctrine of implied rights. A number of rights have been characterized as the inferred rights within the canopy of Article 21 of the Constitution. One such inferred right is “Right to health”. The two crystals of Article 21 are protection of life and personal liberty. The expression ‘life’ in Article 21 does not connote mere animal existence. It has a much wider meaning which includes right to livelihood, better standard of living, hygienic conditions on workplace and leisure. The court in Consumer Education and Resource Centre Vs Union of India385held that the State, be it Union or State Government or an industry, (public or private) is enjoined to take all such action which shall promote health, strength and vigour of the workmen during the period of employment and leisure and health even after retirement as basic essentials to life. The Supreme Court in Kirloskar Brothers Ltd v. Employees’ State Insurance Corporation386followed the Consumer Education and research Center’s case and held that ‘right to health’ is a fundamental right of the workmen. The Court also held that this right is not only available against the State and its instrumentalities but even against private industries to ensure the workmen ample facilities and opportunities for health and vigour already assured in the provision of Part IV of the Constitution which are ‘integral part of right to equality under Art 14 and right to life under Article 21.’This patently reflects how the concept of Rajdharma in providing Right to health has been realized, Rajdharma is one thing and its efficient fulfillment is another. Thereby, to ensure efficiency of Rajdharma in providing Right to health the emphasis has to be on the way or medium of providing or extending the medical aid to the masses. The issue of adequacy of medical health services was also addressed in Paschim Banga Khet Mazdoor Samity vs. State of West Bengal. The question before the court was whether the non-availability of services in the government health centers amount to a violation of Article 21? It was held that that Article 21 imposes an obligation on the State to safeguard the right to life of every person. The preservation of human life is thus of paramount importance. The government hospitals run by the State and the medical officers employed therein are duty-bound to extend medical assistance for preserving human life. Failure on the part of a government hospital to provide timely medical treatment to a person in need results in violation of his right to life guaranteed under Article 21. Therefore, the failure of
385AIR (1995) 3 SSC, 42. 386 1996 2 SCC 682. Page | 255 a government affiliated health centre to provide timely treatment is violative of a person’s right to life. Further, the Court ordered that Primary health care centers must be equipped to deal with medical emergencies. It has also been held in this judgment that the lack of financial resources cannot be a reason for the State to shy away from its constitutional obligation, great achievements and accomplishments in life are possible if one is permitted to lead an acceptably healthy life. Thereby, there is an implication that the enforcing of the right to life is a duty of the state and that this duty covers the providing of right to primary health care. Gone are the days when the functions of the state were restricted to police functions of the state, viz., preservation of law and order and defence of the country from external aggression. The modern state today does not rest content with being merely a ‘police’ or ‘law and order’ state. It tends to become a social welfare state. The significant point however is that in order to carry out its functions and activities, whatever may be their range and intensity, it becomes necessary for any State to establish certain basic organs or agents or instrumentalities which act on its behalf and through which state functions and operate. One such instrumentality includes hospitals wherein it was a common practice among the doctors to refuse to examine the rape victim unless she is not referred by the police. However, the Supreme Court in State of Karnataka vs. Manjanna387 has recognized the right of the rape victims medical examination and disapproved the refusal of some government hospital doctors, particularly in rural areas, where hospitals are few and far between, to conduct any medical examination of a rape victim unless the case of rape is referred to them by the police. Such refusal to conduct the medical examination necessarily results in delay in the examination of the victim which ultimately results in washing away of the evidence of the rape by the complainant herself or be otherwise lost. Thereby, in this way the Right to health of the rape victims is provided to them by the government agencies and they perform their Rajdharma in providing Right to health to rape survivors. The instrument of Public Interest Litigation used by Common Cause, addresses the issue of the working of commercial blood banks. The court in Common Cause vs. Union of India and Ors. ,while recognizing that blood donation is considered as a great life saving service to humanity, it must be ensured that the blood that is available with the blood banks for use is healthy and free from infection. The Supreme Court in this case laid down a system of licensing of blood banks.
387(2001) 4 LRI 731, (2000) 6 SCC188. Page | 256 It may be inferred from the above reasoning that the State is entrusted with the responsibility to ensure efficient functioning of all health care centers. The Constitution was drafted during a period of horrid ordeal marked by war, infiltration, partition, communal riots and other subversive activities. The Constitution is not a rigid document it is a growing and living organism. This growth is provided either by the amendments in the Constitution or by the interpretation of the provisions by the honourable Courts of this country. One such interpretation was provided by the honourable court in respect of the working and living conditions of the workers. Bandhua Mukti Morcha vs. Union of India388a case concerning the living and working conditions of stone quarry workers and whether these conditions result in deprivation of their right to life. The court held that humane working conditions are essential to the pursuit of right to life. It lays down that the workers should be provided with medical facilities, clean drinking water and sanitation facilities so that they may live with human dignity.
In Citizens and Inhabitants of Municipal Ward vs. Municipal Corporation, Gwalior389 the court deliberated on the question- Is the State machinery bound to assure adequate conditions necessary for health? The case involved the maintaining of sanitation and drainage facilities by municipal corporations. It was held that the State and its machineries (in the instant case, the Municipal Corporation) are bound to assure hygienic conditions of living and thus recognizing Rajdharma in providing Right to health.
B. SECOND MEDIUM The second medium is the Part IV of the Constitution which incorporates the positive guidelines or directives which Government must keep in mind while it formulates policies or passes any law. They lay down certain social, economic and political principles, suitable to peculiar conditions prevailing in India. They embody the aims and objectives of a welfare state. The main objective behind enactment of the Directive Principles appears to have been the setting of standards of achievements before the Legislature and Executive, the local and other authorities,
388A.I.R. 1984 S.C. 802,808. 3891993 (004) SCC 0204 SC. Page | 257 by which their success or failure can be judged. The various instances of positive obligation of the state include the following; The state has to direct its policy towards securing that health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength [Article 39 (e)] and that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and maternal abandonment [Article 39 (f)]. Article 47:“Duty of the State to raise the level of nutrition and the standard of living and to improve public health- The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavor to bring about prohibition of the consumption, except for medicinal purposes, of intoxicating drinks and of drugs which are injurious to health” These Articles act as guidelines that the State must pursue towards achieving certain standards of living for its citizens. It also shows clearly the understanding of the State that nutrition, conditions of work and maternity benefits are integral to health. However, these provisions are not enforceable by any court. The reason behind this is that they impose positive obligations on the state. While taking positive action, government functions under several restraints. The Constitution makers, therefore, taking a pragmatic view refrained from giving teeth to these principles. They believed more in awakened public opinion rather than in Court proceedings, as the ultimate sanction for the fulfillment of these principles. Nevertheless, the Constitution declares that the Directive Principles though not enforceable are ‘fundamental’ in the governance of the country and the state has been placed under an obligation to apply them in making laws. The state has to make laws and use its administrative machinery for the achievement of these directive principles. Through the above reasoning an inference can be drawn that the Rajdharma is prominent in providing right to health.
PUBLIC OPINION ON RAJDHARMA IN PROVING RIGHT TO HEALTH Reliability on a document enhances the chances of its authenticity. In order to provide realism to this research paper a survey was undertaken which surveyed doctors, law students, commoners,
Page | 258 business analysts and students enrolled in different colleges. The summary of the responses along with the questionnaire is;
Questionnaire on “Rajdharma in providing Right to health” This form aims to know questions in association with the topic Rajdharma in providing Right to health
*Required
1. Name *
2. Profession *
3. Is it the duty of the state to provide Right to health to the citizens? * o Definitely Yes o No o Can’t say
4. Should Right to health be characterized as a Fundamental Right? * o Yes o No o Maybe
5. Health schemes should extend to the middle class too? * o Yes o No o Can’t say
6. Health mission for all by 2020 will be? *
Page | 259 o Successful o A big failure o Can’t say
7. Should Ayushman Bharat Scheme be provided to the middle class people also? * o Strongly disagree o Disagree o Agree o Strongly agree
8. The state should provide Right to health as?* o Fundamental Right o A part of their duty o A part of their International obligation o Should not provide
9. Should the state be penalized for not catering the health needs of the citizens? * o Definitely Yes o No o Can’t say
Responses
Is it the duty of the state to Definitely No- 0% Can’t say-0% provide Right to health to Yes- 100% the citizens? Should Right to health be Yes- 75% No- 6.2% Maybe- characterized as a 18.8% Fundamental Right? Health schemes should Yes- 100% No- 0% Can’t say-0% extend to the middle class
Page | 260 too? Health mission for all by Successful- A big failure Can’t say 2020 will be? 18.8% - 6.2% 75% Should Ayushman Bharat Agree- 68.8% Disagree- Strongly Scheme be provided to the 6.2% Agree- 25% middle class people also? The state should provide A A part of A part of an Right to health as? fundamental their duty- international Right- 56.3% 37.5% obligation- 6.2% Should the state be Definitel No- 12.5% Can’t say- penalized for not catering y Yes- 37.5% the health needs of the 50% citizens?
Analysis of the Responses
The analysis patently corresponds to the fact that whether it is a doctor, law student, commoner or a business analyst, all of them strongly recognize the fact that it should be the duty of the state to provide right to health to the citizens. Not only this but also 75% of the people think that Right to health should be characterized as a Fundamental Right and 100% of the people believe that the health schemes should extend to the middle class too. Citizens of our country are very vigilant and very particular about the health schemes introduced by the government reflecting their consciousness about their right to health and about the notion of Rajdharma in providing Right to health.
CONCLUSION
The faith which the people of India attach to the ideal of Rajdharma is ever – growing. As far as Rajdharma in association with right to health is concerned, it is evident from the history to the 21st century that the aspect of health comes within the arena of State responsibility and the state is bound to act in order to realize the ideal of welfare State in real sense.
Page | 261 As per World Health Organization (WHO), “The highest attainable standards of health act as a fundamental right of every human being and it is the sole obligation of the State to guarantee the same.”
SOCIAL RESPONSE TOWARDS HOMOSEXUALITY AND THIRD GENDER
JURISPRUDENCE IN INDIA
Ms. Ambika Dilwali
Abstract
Eugen Ehrlich has rightly summed up the condition of social response towards third gender jurisprudence in India in the following words:
“In order to be able to state the sources of law, one must be able to tell how the State, the church, the community, the family, the contract, the inheritance came into being, how they change and develop.”
The third gender and homosexuals have been victims of a long and continued discrimination and have been social outcasts that have resulted in their economic growth and disability. It was only in 2018 after a long struggle for the rights of these maginalised groups did the Supreme Court decriminalise homosexuality after recriminalising it in 2013. The courts as an instrument of change and social control have done everything in their capacity to change the current predicament.
In the words of Sir Roscoe Pound, the courts have created a balance between the social interests and the individual interests by giving preference to what the need of the hour is than to conform with the societal mindset.
It is the society that needs to undergo a psycological evolution in accepting and acknowledging the right to live with dignity and earn their livelihood. No country in this world can progress if the society does not keep pace with the new developments.
Ambika Dilwali, 3rd year B.A. LL. B (Hons.), Amity Law School, Delhi. Page | 262 This paper seeks to evaluate the societal viewpoint on decriminalisation of Section 377 and the effects on those who were previously affected by it via theories of eminent jurists’ works and their relevance in the modern Indian society.
Keywords: constitutional morality, psychological evolution, societal viewpoint, privacy
Introduction
The landmark judgment of Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice,390 the Supreme Court decriminalised all consentual sexual intercourse among adults in private. The realist theory rightly fits into the scenario as courts act as a means for social change despite the societal predicament persisting. It is interesting to note that the Government of India decided to abstain from the hearings and had left the matter to the wisdom of the court.
The poltical parties including the National Democratic Alliance and the Bhartiya Janata Party had officially stayed silent on the verdict of the court. G.V.L. Narasimha Rao opined that any decision on the matter “takes sync with the jurisprudential developments on gay rights the world over would be welcome”.391 The Indian National Congress of the United Progressive Alliance welcomed the judgment remarking that it is the beginning of a more equal and inclusive society.
All reactions were favouring the ruling however, The All India Muslim Personal Law Board stated that legalising homosexuality is against Indian values and culture. No religion allows immorality and the government must pass a bill to protect the rights of women as they would be
392 largely affected by the legalised homosexuality.
Homosexuality in Ancient and Modern Indian Society
Ruth Vanita has rightly summed up the social response to homosexuality in the following words:
390AIR 2018 SC 4321. 391Special correspondent, “Ruling and Opposition parties on the same side against Section 377” The Hindu, Jan. 8, 2018. 392 The Hindu Net Desk, Reactions to Section 377 verdict, Jamaat-e-Islami Hind expresses dismay, available at:https://www.thehindu.com/news/national/live-reactions-to-supreme-court-judgment-on- section 377/article24879585.ece (Visited on May 25, 2019). Page | 263 “Islamic and colonial influences imported much more repressive attitudes towards sexuality
393 than what had perhaps existed in ancient and pre-colonial India.”
Homosexuality has been a part of the Indian society since time immorial. Hinduism has never considered homosexuality a sin but viewed it as worthy of punishment. In the Manu Smriti, cetain punishments for specific instances of male and female homosexuality are prescribed with light forms of punishments. Despite the rich background, India has become homophobic and reluctant towards same sex love.
The Mughal empire combined a number of laws followed during the Delhi Sultanate Era and incorporated it into the Fatawa-e-Alamgiri containing a common set of punishment for unlawful intercourse.
India, today has placed an overt emphasis on reproduction, a duty to carry the lineage ahead making same sex love, intercourse in particular a general taboo. Section 377 of the Indian Penal Code had criminalised private, consensual sexual acts between adults that are “against the order of nature,” or any sexual act that is non- vaginal.
It was only in 2018, was this regressive legislation was repealed on the ground that only constitutional morality can be allowed to permeate into the Rule of Law and social morality is bound to take a backseat when the question of supremacy arises. Constitutional morality embraces within its sphere the virtue of a pluralistic and inclusive society wherein the State as well as the Judiciary is vested with the responsibility of preserving the heterogeneous society and curb any attempt made by the majority to override the rights and freeedoms of a smaller or miniscule section of the population. The view of the majority cannot be used as an excuse to violate the fundamental rights of even a single individual. The essence of constitutional minority lies in the recognition of diversity that pervades the society.
However, Amnesty International India has expressed that the verdict gives hope to everyone fighting for justice and equality while stating that the struggle for the rights of the LGBT people will continue in relation to marriage, adoption or inheritance.
393 Ruth Vanita (ed.), Queering India: Same-Sex Love And Eroticism In Indian Culture And Society 15– 29. (Routledge Taylor & Francis Group, New York, 2002). Page | 264 The United Nations welcomed the judgment and held that the first step towards ensuring full fundamental rights to LGBT persons. Sexual orientation and gender expression form an integral part of an individual’s identity the world over and emphasised that India should take adequate steps in ensuring social, economic, cultural and political equality.
The Constitution- A force of progression
“The constitution is not a mere parchment; it derives its strength from the ideals and values enshrined in it.”
The essence of the Indian Constitution is its democratic dynamism making it an organic and breathing document which is adaptable to the developments taking place in the society.394 The Constitutional Courts are bestowed with the duty to breathe life into the constitution and not render the document a file of dead letters. This dynamic instrument fosters and strengthens the spirit of equality and envisions a society of equal rights and recognises the fact that ‘change is inevitable and inescapable’.
The judiciary as a final arbiter of the Constitution, while keeping the vision of equal rights intact has to transform constitutional idealism into reality. The continuous and progressive change in the society has rendered the law to undergo change from the year 1860 by the means of an evolving constitution. In many spheres, sexual minorities have been recognised and given space in respect of the NALSA judgment. After establishing that a person who has come of age and has the capability to think has been accrued the right to choose his/ her life partner.395 The Shafin Jahan396 judgment raises the argument that what is permissible between two adults of opposite sex engaged in sexual activity might not be acceptable in the case of two individuals of the same sex. Giving consideration to the societal outlooks, the principle of transformative constitutionalism places a duty on the State to ensure and uphold the supremacy of the Constitution.
In one of the Constitutional Assembly Debates, Dr. Ambedkar while explaining the principle of constitutional morality held that it is not a natural forte for India for the simple reason that our
394Chief Justice of Andhra Pradesh and others v. L.V.A. Dixitulu and others, (1979) 2 SCC 34. 395Shafin jahan v. Asokan K.M. and Ors.AIR 2018 SC 1933. 396Ibid. Page | 265 country attained freedom after a long period of the colonial British Raj and thus, this concept was an alien notion. The duty to strengthen and protect constitutional morality in contemporary times is vested on the organs of the State including the judiciary as the custodian of fundamental rights. The society as a whole or even a miniscule part of it have legitimate expectations and are perfectly able to have different tastes of notion and likings well within their legal framework and legislations.
Under the pretext of social morality, the members of the LGBT community must not be maltreated and outlawed. If this behaviour on account of the general will as identified by Friedrich Carl von Savigny is allowed to exist, it will be in clear derogation of the duty on the State to protect fundamental rights.
Article 1 of the Universal Declaration of Human Rights, 1948 uncompromisingly state that all human beings are born free and equal in dignity and rights. As observed by Justice Kirby, UDHR are applicable on every individual in the world leaving no exceptions to the principles of
397 equality.
Gender identity and sexual orientation
In the words of Nelson Mandela,“To deny people their human rights is to challenge their very humanity.”
The phenomenon of gender identity designates an identity as a male or female to a person irrespective of the fact if there exists “conformity or non- conformity” between their physical or biological or birth sex and their psychological sex and the manner in which they express it through physical characteristics, appearance and conduct.
Every human being exhibits certain biological characteristics and others are either acquired or developed under certain circumstances. These biological attributes are of inherent orientation that are natural to his/her being. This demonstration of his/her choice gradually becomes an inseparable part of his/her being.
397 Michael Kirby, Human Rights Gay Rights,Humane Rights, (2016). Page | 266 The Yogyakarta Principles define ‘sexual orientation’ as a person’s capacity for profound emotional, affectional and sexual attraction to and intimate and sexual relations with, individuals
398 of a different gender or the same gender or more than one gender.
Homosexuality just like heterosexuality is ingrained, inherent and innate pattern of sexual attraction. The society cannot be unmindful and ignorant to a person’s sexual orientation and compel a person to be in conformity of what is societally acceptable. It is like to compel a body part to perform a function it was never designated to perform in the first place.
Right to Privacy
The LGBT community seeks realisation of its basic right to companionship, so long as such companionship is consensual, free from deceit, influence or coercion and does not result in the violation of fundamental rights of others.
While checking the vires of Section 377, the newly elevated right to privacy must be assessed in the compartment of individual autonomy and self-determination. Under the concept of autonomy, the individual has sovereignty over his/her body in matters of wilful surrendering to another individual and their intimacy in privacy is a matter of their choice. The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of India by the virtue of Article 21 and it is also the “right to be left alone” ensuring the right to safeguard the privacy of his/her
399 own, his/her family, marriage, procreation, motherhood, child-bearing and education.
The view as to right to privacy underwent a transformation when a nine- judge bench of the Supreme Court in Puttaswamy’s case elevated the right to privacy to the stature of fundamental right under Article 21 of the Constitution. The court opined that the judgment in Suresh Kumar Koushal v. NAZ Foundation and Ors.,400 does not lay down a valid constitutional basis for disregarding a claim based on privacy under Article 21 of the Constitution. The argument that “a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders” is not the correct basis to deny the right to privacy. Sexual orientation is a facet of an individual’s privacy which is a fundamental right under the Constitution. The mere fact that 398 Principle 3, Yogyakarta Principles, available at:https://yogyakartaprinciples.org/principle-3/(Visited on May 21, 2019). 399R. Rajagopal v. State of Tamil Nadu and others, (1994) 6 SCC 632. 400AIR 2014 SC 563. Page | 267 the percentage of population whose fundamental right to privacy are in violation by the virtue of Section 377 does not limit the Constitutional Courts from protecting the fundamental rights of those who are affected. There is nothing in the Constitution to show that the framers intended the protection of fundamental rights of only those who were in majority. If this was the case, all provisions contained in Part III of the Constitution would include the wordings “majority citizens/ persons” instead of “any person/ citizen”.
The Living Law Approach by Ehrlich
According to the living law approach put forth by Ehrlich, the real source of law is not the statute itself, but the actions of the people living in the society. Ehrlich has rightly stated that:
“The centre of gravity of legal development lies not in legislation, nor in juristic science, nor in judicial decision, but in society itself...The State existed before the constitution; the family is older than the order of the family; possession antedates ownership; there were contracts before there was a law of contracts; and even the testament (will), where it is of native origin, is much
401 older than the law of last wills and testaments.”
The observation of Ehrlich was that the laws found in formal legal sources, such as statutes and decided cases, give only an inadequate picture of what really goes on in a community.402 Therefore, the living law of society has to be sought outside the confines of formal legal sources, i.e., in the society itself. This is because only a very small fraction of social life comes before the courts, and even then it usually represents some form of breakdown of social life.403 After determining that society consists of intermingling normative and official associations,404 which operate through an inner order, Ehrlich concluded that it was in this inner order that one could find the living law. The essential body of legal rules is therefore not based on State intervention
401V.D. Mahajan, Jurisprudence and Legal Theory 625 (Eastern Book Company, Lucknow, 5th edn., 1993). 402 Eugen Ehrlich, Fundamental Principles of the Sociology of Law 16–17, 24, 133, 136 (Transaction Publishers, London, 4thedn., 2009). 403V.D. Mahajan, Jurisprudence and Legal Theory 626 (Eastern Book Company, Lucknow, 5th edn., 1993). 404 Eugen Ehrlich, Fundamental Principles of the Sociology of Law 26 (Transaction Publishers, London, 4thedn., 2009). Page | 268 via means of compulsion, but on social facts of law, which are: usage, domination, possession
405 and declaration of will.
According to Ehrlich, the social norms determine societal and law within the inner order of associations. Organisational norms must be effectively combined and coordinated with the decision making norms,406 if the traditional values of a society are to continue to be living law and thirdly, organizational norms employ their full societal potential when pitted against the norms of the second order from the superimposing State law.407 Therefore, living will is to be
408 determined by observing the people living in the society and making note of their behaviour.
Applying Ehrlich’s theory in practice, the law makers and interpreters of law need to take into consideration the social facts, they need to take an account of the problems faced by the third gender and persons with different sexual orientations by observing their lives in terms of their lived experiences. Such an understanding is imperative for the prevention of future biased convictions of the LGBTQ community. While one may morally disagree with homosexuality, it is ethically contemptible to discriminate against persons based solely on their sexual preferences; in fact it is a violation of human rights. As mentioned earlier, though people may imagine the world in a particular way, it does not always correspond with the reality of others. For instance, gay people are often stereotyped as promiscuous. But when their identity and life itself are at stake, with lack of security, support or protection of law, no consequences can follow, in contrast to heterosexual relationships, which are controlled by law. Therefore, we need to look for law beyond the law, which is possible only when we understand the social facts of law.
Ehrlich places emphasis on the fact that statute or law which is habitually disregarded is not a part of the living law. In the leading case of Suresh Kumar Kaushal v. Naz Foundation and Ors.,409 despite the existence of the Section 377, both the State and Court must be aware of whether this provision is regarded or disregarded in practice. That is to say, Section 377 penalizes carnal intercourse (oral or anal) between consenting adults (whether homosexual or
405 Marc Hertogh, Living Law: Reconsidering Eugen Ehrlich 89 (Hart Publishing, Portland Oregon, 2009). 406 KA Ziegert, “The Sociology behind Eugen Ehrlich’s Sociology of Law” 7 IJSL 11 (1979). 407 Reza Banakar and Max Travers, An Introduction to Law and Social Theory 33, 44 (Hart Publishing, Oxford, 2ndedn., 2013). 408 Reginald Walter Michael Dias, Jurisprudence 425–427 (Butterworths, London, 4th edn., 1976). 409AIR 2014 SC 563. Page | 269 heterosexual) even when it is committed in private. In the latest Supreme Court judgment decriminalizing homosexuality the court logically reasoned that, firstly, why should or how can the State even enter into the bedrooms of citizens in the first place; and secondly, what preventive measures can be taken by the State to curtail the so-called “offensive” acts? In this regard, neither the State nor the Court can justify their stance. Another fallacy can be that it is impossible for law enforcing authorities to prohibit people from having oral or anal sex, unless the State decides to place closed-circuit televisions (CCTV) in all houses or at such places where it may be possible to see this offence being committed.
Supporting Ehrlich’s argument, the question that comes into picture is when two consenting adults engage in such acts, it should not be a State concern: it harms neither the public nor State or society. State interference would actually violate the individual right to privacy, which is a
410 fundamental right under Article 21 of the Indian Constitution.
The concept of what is socially acceptable is differs in different society and even in the same society at different times, the line between legal, moral and social rules is constantly fluctuating. In the past, sati practice, child marriage and Devadasi system were socially approved but today are no longer acceptable. Similarly, the court through its landmark judments in the recent years
411 have upheld live-in-relationships and pre-marital sex.
It is well evidenced from above that the norms or rules governing people’s lives in the society are partially reflected in the formal law of the State. This in turn would mean that without society the formal law is incomplete and immature. There is always a gap between the living law and the formal law. The formal law can never catch up to the living law.
The philosophy behind Ehrlich’s living will is simply that the law-makers and interpreters of law should not only study the formal legal system but see to it that it is compatible with the present social life or societal changes. His theory should be viewed in light of the changing needs of the society. His theory is particularly relevant in the case of Section 377, a law in existence since 1860. With time law must evolve, just as religion, culture, society and humans are constantly evolving.
410K.S. Puttaswamy and Ors. v. Union of India and Ors.,(2018) 4 SCC 651. 411 S. Khushboo v. Kanniammal, AIR 2010 SC 3196. Page | 270 Need for a pschological evolution
It was a period of later half of the 19th century and the first quarter of the 20th century during which psychology had greatly influenced law. Gierke denounced the orthodox approach of the historical school which over emphasised on metaphysical approach to law and highlighted the importance of group personality for securing collective interests. Thus, it was realised that psychological aspect of law has a close bearing to its functional aspect.
"What man is, he owes to the union of man with man. The possibility of creating associations, which not only enhance the power of those who live contemporaneously but above all, through their permanence, surviving the personality of the individual, bind the past of the race to those to
412 come, gives us the possibility of the development of history."
It is pertinent to note that the smooth implementation and acceptance of a judgment or legislation in the society is only possible when the group of society as a whole indicates its acceptance. Merely passing of a judgment or law cannot give rights to the LGBTQ community until it is accepted by those against whom these rights will be implemented. There is a need of progressive thinking for the community to exercise its freedom without the fear of abandonment.
As Wilhelm Wundt has rightly propounded, the State is not necessary to law. What is necessary is an association or society which is capable of producing a collective will because of
413 correspondence of ideas and interests.
Grieke’s theory of psychological evolution fits precisely in the Indian society’s perception towards homosexuality and transgenders. In the landmark case of Hyde v. Hyde414 the classic legal definition of marriage was given by Lord Penzance as the voluntary union for life of one man and one woman, to the exclusion of all others, the society has accepted this notion since time immemorial. Moreover, the statutes for marriage in India do not include the term “third gender” or “transgender” in their provisions Even if a birth certificate was issued for a person in the alternate sex, that would not automatically allow a person to marry as a member of that sex unless the Courts were willing to
412 Otto Friedrich von Gierke, Das deutsche Genossenschaftsrecht (Weidmann, Princeton, Vol. 2, 1873). 413 Wilhelm Wundt, Logik 543 (Enke, Germany, 2nd edn., 1895). 414 [1861–73] All ER 175. Page | 271 endorse such a marriage. It is possible that even though a person has a birth certificate as a female, for example, pursuant to such legislation, a Court could still hold that the person did not
415 have the attributes to marry in that sex. In the case of Naz Foundation v. Govt of NCT, Delhi,416 the viewpoint adopted by the Union Ministry of Home Affairs had justified the rentention of Section 377 of the Indian Penal Code on the grounds of protecting minors against sexual abuse while holding that legal reforms in a large number of countries so as to decriminalise homosexual conduct is attributed to increased tolerance shown by such societies to new sexual behaviour or sexual preference, Indian society is yet to demonstrate willingness to show greater tolerance to the concept of homosexuality. There is no fundamental right in the Constitution protecting such activites of homosexuality. The foreign ideology cannot justify decriminalisation of homosexuality in India since the western societies do not hold high moral standards vis-à-vis Indian standards. Indian society considers homosexuality to be abhorrent, immoral and contrary to the cultural and societal norms. In July 2009, a two judge bench of the Delhi High Court while decriminalising Section 377 opined that the Indian Constitution reflects the value deeply ingrained in Indian Society, nutured over several generations, the feeling of inclusiveness is deeply displayed in the Indian traditions. Indian society should display inclusiveness and understanding assuring a life of dignity and non-
417 discrimination. The victory secured in the above mentioned judgment was very long lasting, in the case of Suresh Kumar Koushal and Ors. v. NAZ Foundation and Ors.,418 the court developed a discriminatory notion towards homosexual people and the third gender. The judgment recriminalized Section 377 due to a lack of gender recognition. This judgment met with the corresponding views of the society that are in existence uptil now. Conclusion The right to live with dignity has been recognised as a human right on the international front and by number of precedents of the Indian courts. The viewpoint in Suresh Kumar Koushal’s case419 that only a miniscule fraction of the total population comprises of the LGBT community and the
415Attorney-General v. Otahuhu Family Court,[1995] 1 NZLR 603. 4162010 Cri LJ 94. 417 Naz Foundation v. Government of NCT and Ors.,2010 Cri LJ 94. 418 AIR 2014 SC 563. 419AIR 2014 SC 563. Page | 272 existence of Section 377 of the Indian Penal Code, 1860 affects a very small population has been held irrelevant in the Privacy judgment420 wherein Right to Privacy has been raised to the pedestal of fundamanental rights. However, the long and exhausting struggle does not end by simply decriminalising Section 377 till the time the third gender and homosexuality is not looked down upon by the society. Savigny’s theory of a ‘living will’ fits perfectly in the present situation as no law can be enforced till there is social recognition and acceptance to the same as it becomes a piece of paper rendered useless. The court’s ruling is just the first step towards guaranteeing the full range of fundamental rights to LGBTQ persons. The stigma and discrimination towards these persons will not end until an inclusive society is born that can ensure the economic, social and cultural rights of the group. It is the responsibility of the society and the judiciary together to ensure that the right to marriage, adoption, livehood and live with dignity are guaranteed for these persons and the judgment’s essence does not fade away due to lack of means to enjoy it. Indian society has a long, standing disregard to the third gender and homosexuals that cannot be changed until a social revolution is born, nor can these persons live with dignity in the society irrespective of what the law says.
420K.S. Puttaswamy and Ors. v. Union of India and Ors.,(2018) 4 SCC 651. Page | 273
PRISON CELL: A PLACE OF REHABLITATION OR TORTURE?
Manasvi Bhatt
“Every saint has a past; every sinner has a future”- Oscar Wilde
In the law of land, an individual who has committed a crime is entitled to be punished as per. Ideally, Judicial punishments are considered to be an appropriate measure of pain he/she has caused to the victims and the societal structure. In present scenario, large number of imprisonment of criminals has led to overcrowding of prison cells and poor management. The increasing numbers of custodial deaths raise an important issue of the deteriorating living conditions of prisoners. The following paper highlights the problem of overcrowding, staff crunching, lack of legal knowledge and custodial deaths of prisoners.
Supreme Court Justice in the case of Marie Andre’o vs. the Superintendent said that imprisonment does not spell farewell to fundamental rights although, by a realistic re-appraisal, courts will refuse to recognise the full panoply of Part III enjoyed by a free citizen. A prison is not just the place of deterrence but also of rehabilitation. It gives the prisoner an opportunity to realise his mistakes, reflect on them and start a new life. But if he will live in an atmosphere of constant fear, violence, torture, denial of opportunity to reprimand himself and is deprived of his fundamental rights and adequate health facilities then it could be termed as inhumane conditions unfit for survival.
The term prisoner has been defined under Section 1 of the Prison Security Act, 1992. It states that prisoner means any person for the time being in a prison as a result of any requirement imposed by the court or otherwise that he be detained in legal custody. A prisoner already undergoes punishment; the prison sentence is individually accountable for the actions of prisoner
Page | 274 and protects the society. The prison conditions should not be an additional punishment for them. The constitution of India guarantees fundamental rights to prisoners. In the case of State of AP v. Challa Ramkrishna Reddy421it was held that the prisoner is entitled to all his fundamental rights unless his liberty has been constitutionally curtailed. A prisoner whether under trial, convicted does not seize to be a person and can exercise his fundamental rights guaranteed by the constitution. Even when a person is convicted and deprived of his liberty in accordance with the procedure established by the law; he/she still retains the residue of the constitutional rights.422 Mere detention does not deprive the convicts of their fundamental rights enshrined in the constitution.423 Articles 14, 19 and 21 are available to the prisoners as well as a freeman. This was held in the case of T.V. Vatheeswaran v. State of Tamil Nadu424. Apparently in reality, the living conditions in prisons do not meet the basic standards. A person’s self esteem and dignity is identified through his living standards. Police officers consider harsh treatment as a legitimate way of treating prisoners. Those prisoners who suffer inhumane treatment and punitive conditions are psychologically shattered. Humane conditions provide for the space where prisoners can positively respond to the rehabilitative programme. They also reduce the prevalence of violence in prisons. Prisoners face number of problems like overcrowding, abuse, custodial deaths, improper sanitation, and shortage of staff, poor expenditure on health and mental care, lack of legal facilities.
OVERCROWDING
The problem of overcrowding is not a new one. This phenomenon exists from time immemorial and yet is unsolved. It cripples the every possibility of providing humane conditions and the implications are too serious to neglect. According to report of World Prison Brief, 2016 the official capacity of prisons is India is 380,876 and the total prison population is 433,003. The prisons are overcrowded by 13.7%.The core reason of overcrowding is the presence of under trails and the delay to solve the cases. Sometimes an under trail cannot furnish for bail, delay in police investigation, delay of court hearings all leads to the increase time of an under trail in a
421(2000) 5 SCC 712: AIR 2000 SC 2083. 422Jain M.P., “Indian Constitutional Law”, 5th Edition, Vol. 1, Wadhwa and Company, Nagpur, 2003, p.1295. 423D.B.M. Patnaik v. State of Andhra Pradesh AIR 1974 (SC 2092). 424AIR 1983 SC 361 : (1983) 2 SCC 68. Page | 275 prison. A case takes years to get solve and for that period the accused remains in jail. The question of his acquittal or conviction comes at a later stage. In some cases it is observe that the accused remains in jail for the term that is provided for the crime he has committed. Overcrowding strains prison infrastructure, hampers correctional services, spread contagious diseases and led to multiple problems for the prison administration. According to Lord Wolf, “owing to overcrowding, very often a substantial number of prisoners leave jails more embittered and hostile to society than when they arrived.”425 To reduce the population in jails the under trail population has to be brought down but it cannot happen drastically. The courts and the police have to work in tandem. Increasing the number of courts cannot bring the desired result as long as the current ‘adjournments culture’ continues.426 The non violent crimes, civil crimes and pity crimes can be solved through alternate methods to curb out this problem. According to National Crime Records Bureau, 2015 prisons are overcrowded with around 14% occupancy. More than two-third of the inmates are under trails. Many a times under trials lose their family and neighborhood ties and prison time attaches a social stigma to them as individuals and as a community. Even when they are acquitted they find their employment jeopardised for none of their faults. Section 436A of the Code of Criminal Procedure mandates the release of the under trial on personal bond with or without surety who have been imprisoned for half of the maximum sentence they would have received for the crime they have committed. But this section is not applicable to sentences of life imprisonment and death sentence.
STAFF CRUNCHING
According to National Crime Records Bureau, 2016 around 34.5% of posts in prison administration are vacant. This leads to a problem of staff crunching. Jharkhand faces the worst situation of staff crunching with 23 prisoners for every jail official. The condition with medical personnel is even worse. In Jharkhand only 24 medical personnel are present for 29 prisons, on average of one medical personnel per 716 prisoners. In West Bengal only 23 medical personnel are present for 59 prisons, on average of one medical personnel per 999 prisoners. Uttar Pradesh and Gujarat has only one single correctional officer. The problem of staff crunching and overcrowding leads to violent crimes within prison premises. According to reports due to lack of 425Sen Shankar, “Police in Democratic Societies,” Gyan Publications, New Delhi, 2000, p.174. 426Raghavan R.K., Frontline, “The Hell that is Prison,” Volume 21 - Issue 26, Dec. 18 - 31, 2004, available at http://www.frontlineonnet.com/fl2126/stories/20041231003511100. Page | 276 staff prisoners have been successful in escaping prisons. In 2015, 32 prisoners successfully escaped prisons, while in Rajasthan 18 prisoners were successful and Maharashtra witnessed an
427 escape of 18 prisoners.
LACK OF LEGAL KNOWLEDGE AMONG PRISONERS
The 42nd amendment added Article 39A of the constitution. It directs the state to ensure that the operation of the legal system promotes justice on the basis of equal opportunity and shall, in particular, provide free legal aid by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reasons of economic or other disabilities. This article promotes equality in the process of justice. In the case of Hussainara Khatoon v. State of Bihar428, the court emphasised that free legal service is an inalienable element of “reasonable, fair and just” procedure and that therefore the right to free legal services is implicit in the guarantee of Article 21. Similarly in the case of Suk Das v. Union Territory of Arunachal Pradesh429, the court stated that it the fundamental right of the prisoner to have access to free legal aid. The constitution of India guarantees fundamental rights to prisoners equally as assigned to a freeman. Article 21 implicitly provides the following rights to the prisoners-
• Right to free legal aid • Right to speedy trial • Right of inmates of protective homes • Right against cruel and unusual punishment • Right to fair trial • Right against custodial violence and death in police lock ups or encounters • Right to live with human dignity • Right to consult lawyer and meet friends • Right to reasonable wages in prison
427Rath Basant(2017)-Why we need to talk about the condition of India’s prison, also available at https://thewire.in/uncategorised/india-prison-conditions. 428(1980) 1 SCC 81. 429(1986) 2 SCC 401. Page | 277 • Right against solitary confinement, handcuffing and bar fetters and protection from torture
The Prisons Act, 1894 also guarantees rights to prisoners such as:
• SECTION 4- Accommodation and sanitary conditions for prisoners
• SECTION 7- Shelter and safe custody of the excess number of prisoners who cannot be safely kept in any prison
• SECTION 24(2)- Examination of prisoners by qualified medical officer
• SECTION 27- Separation of prisoners, containing female and male prisoners, civil and criminal prisoners and convicted and under trial prisoners
• SECTION 31 and 35- Treatment of under trials, civil prisoners, parole and temporary release of prisoners
Also under Code of Criminal Procedure, 1973 Section 303 and 304 talks about the legal aid to the prisoner. It is the right of the accused to be defended by the pleader of his choice under section 303. Whereas under section 304 where the case is before the court of session and the accused is not represented by the pleader and he does not have sufficient means to engage a pleader, then it is the duty of the court to assign a pleader to the accused at the expense of the state.
Despite of these rights which are guaranteed by the law, the prisoners suffer the most inhumane treatment behind the bars and mostly are unaware of their rights. Prisoners coming from the weaker section of society suffer the most. Mostly the prisoners of economically weaker background do not have a legal representative. They cannot afford the bail and have zero clues about the status of their case. They are totally unaware about the right to seek free legal aid. There are no law officials appointed, no legal aid forms available with prison authorities, no maintenance of the records of applicants. Common Human Rights Initiative430 conducted a survey where it was concluded that 23% of the prisoners were not aware of the visits from any legal service authority; 49% of the prisoners said that rarely representative of district legal
430 Commonwealth Human Rights Initiative (CHRI) 2010.“Conditions of detention in prisons of Karnataka.”Commonwealth Human Rights Initiative, New Delhi, India.Available at, http://www.humanrightsinitiative.org/publications/prisons/conditions_ of detention in the prisons of Karnataka. Page | 278 service authority visit the prison; and 28% of the prisoners held that the magistrate visit the prison once a month and once in three months. The visitors’ note shows that they mostly visited during evening hours and only for few months. They mainly paid attention to juveniles and mentally unstable prisoners. Prisoners also stated that they have stopped making complaints because their complaints are never addressed.
CUSTODIAL DEATHS
Deaths in custody is not a new phenomena, they exists since time immemorial. Reports have proved that custodial torture is endemic in India. A custodial death means the death of an individual who has been detained by the police on being convicted or is under trial. They are classified in three broad categories: death in police custody, death in judicial custody, and death in custody of defence/paramilitary forces. The allegations of these deaths must be borne by the state governments where police commit such crimes, as the police and public are the subjects of the state.
According to reports Uttar Pradesh has recorded maximum number of custodial deaths that is 204 during the period of January to August, 2017 and by February, 2018 the death number has almost doubled.431 According to report of Asian Centre for Human Rights (ACHR), India recorded 5 custodial deaths per day on an average April, 2017 to February, 2018. On 14th March, 2018 home ministry placed statistics which showed that India recorded a total of 1674 custodial deaths out of which 1530 were in judicial custody and 144 in police custody between April, 2017 to February, 2018.432 The National Crime Records Bureau, 2016 shows that there were 209 cases registered against police personnel for human rights violation and out of which 50 number of police personnel were charge sheeted and none of the police personnel is convicted. The report of EPW, 2017 talks about the horrific torture prisoners face. It states that “where there were no cameras, they were assaulted with wooden logs and pipes. They were forced to do 500 sit-ups
431Arijit Sengupta(2018)-High Numbers of Custodial Deaths: Police Butchering Basic Human Rights, available at https://www.newsclick.in/high-numbers-custodial-deaths-police-buthering-basic-human- rights. 432Sankalita Dey(2018): In 2017-18, there were 5 custodial deaths per day in India, says report, available at https://theprint.in/governance/in-2017-18-there-were-5-custodial-deaths-per-day-in-india-says-report/ 75654/. Page | 279 without break and kneel down for a long time. A few of them were tonsured and abused as
433 well.”
International law and municipal law have taken measures to stop this heinous crime. In case of DK Basu v. State of West Bengal434, the Supreme Court opined that custodial violence including torture and deaths in lock ups, strikes a blow at the rule of law and the court issued a list of 11 guidelines in addition to statutory and constitutional safeguards which were to be followed in all cases of detention and arrest. Also, in case of Neelabati Behera v. State of Orissa435, the Supreme Court had held that prisoners are not denuded of their Fundamental Rights under Article 21 and only such restriction as permitted by law could be imposed on the enjoyment of the Fundamental Rights of the prisoners. The court has ruled that the burden of proof in case of custodial deaths lies on the police rather than on the relatives of the victim. The provisions of code of criminal procedure, 1973 also safeguards the prisoners from custodial torture:
• SECTION 49- provides that the person arrested shall not be subjected to more restraint that is necessary to prevent his escape.
• SECTION 57- provides that no police officer shall detain a person without warrant for a longer period than under all the circumstances of the case is reasonable and such period shall not exceed 24 hours, exclusive of the time of journey in absence of any special order by a magistrate under section 167. This is mandatory provision.
• SECTION 57A-provides that when a person arrested without warrant is produced before magistrate, and then the magistrate will satisfy by the enquiries from the arrested person that the provision of section 56 and 57 has been complied.
• SECTION 163- provides that no police officer or other person in authority shall offer or make or cause to do so any threat, inducement, promise as mentioned under Section 24 of Indian Evidence Act, 1872. This section also provides that no police shall prevent any person in course of investigation to make any statement which he may be disposed to make of his own free will.
433Vaibhavi Sharma Pathak: Five custodial deaths per day, India needs stricter punishment to those who commit it, available at https://thelogicalindian.com/awarness/cutodial-torture-bill/. 434(1997) 1 SCC 416. 435AIR 1993 SC 1960. Page | 280 • SECTION 164(4) - provides that any confession shall be recorded according to the manner provided under section 281 for recording the examining of any accused person and shall be signed by the person making. The magistrate shall satisfy that the person making the statement is aware of the fact that he is not bound to do so and the statement made by him is from his free will and he has been read over the statement and the statement was taken in the presence of the magistrate.
The provisions of chapter 16 of Indian Penal Code, 1860 contain the offences against human body and protect the person in custody as well.
• SECTION 166- provides that any public servant, who knowingly disobeys any direction of law with an intention to cause to injury to other person, shall be punished with a term which may extend to one year, or fine, or both.
• SECTION 167- provides for punishment to a public servant for framing an incorrect document to cause injury to other person.
• SECTION 220- provides punishment to a person with legal authority to confine person, who corruptly or maliciously confines any person, knowingly that in doing so he is acting contrary to law.
• SECTION 340-348- provides for wrongful restraint and wrongful confinement and their aggravations.
• SECTION 376B-376D- provides for custodial sexual offences. It talks about intercourse by police servant with a woman in custody, intercourse by superintendent of jail, remand homes.
India is also a signatory of UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (UNCAT), it is yet to be ratified. National Human Rights Commission has urged the government to recognise torture as a separate crime and codify the punishment in penal laws. Since India has not ratified UNCAT, this has resulted in India not being able to get many fugitives extradited and making them face the law. The stand of India is considered weak with regards to commitment to prevent and abolish torture and punish its perpetrators.
CONCLUSION
Page | 281 Despite of the laws, rules and guidelines, the condition of prisoners is not getting any better. A prisoner is sent prison in a hope that he will realise the mistakes that he has made and to pay for the crimes that he has committed. But when he will have to live in such a horrific environment then the ray of hope to make him better is lost somewhere in the darkness of the torture and harassment faced by him. Police is a machinery to control crime but when this machinery starts committing crime then the society will deteriorate at faster rate. Custodial violence is a threatening and dark spot in our society and justice system. The police administration needs to take strict measures to give a better living condition to prisoners. Strict laws should be made to punish the ones who are responsible for the inhumane treatment to prisoners. The general public, prisoners and relatives of the prisoners must be made aware of the rights of the prisoners and the procedure of arrest and detention. The complaints of the prisoners must be heard. A separate committee should be made to keep an eye in the way the prisoners are treated. The quality of food, hygiene conditions of prisoners must be checked from time to time. Proper medical treatment must be done from time to time. Prisoners who are need of medical treatment must be given immediately. Not just the police the government and the justice system are equally responsible for the current situation of prisoners. If a case is solved within a short time and justice is served timely, then probably the prisoners will not go through such mental trauma. The rate of under trails is much higher than the convicted. Government has to work on the problem of overcrowding of prisons and the lack of staff in prisons. Work has to be done from ground level to the top most level. Strict actions have to be taken against person who violated the human rights and fundamental rights of the prisoners. The prisoners also have the right to live in humane conditions with proper dignity and safe environment. If as a society we really wish to see the crime rate is decreasing then every person of the society has to take a step to make it accomplish. If the current situation of prisoners lasts for a long time, then apparently the prisoners either convicted or under trials will continue to suffer mental and physical torture, and we as a society will fail.
Page | 282
NEED FOR REGULATION IN IRREGULAR MIGRATION FROM INDIA TO THE EUROPEAN UNION (EU)
BY : PAVAN KUMAR R Abstract: This article encompasses the understanding of migration and the effects of migration in today’s day and age. It also focuses on the pre independence and the post independence era and how there was reverse migration, with increase in population.
This article also deals with the different types of migrants and as to how india became the reservoir of human resource for various countries across the world. It is seen that irregular migrants work for much lesser wages as compared to the local workers, which further angers the local workers.
The social impact of irregular migration is the worst as they endanger the security of the destination country. Their status makes them vulnerable to criminal exploitation promoting terrorism in the world. The migrants pose a great challenge to the destination country giving rise to the agitation from the residents from the public.
This article further deals with the EU legislation in respect of migration and is concluded with as to what initiatives need to be taken to keep a tab on irregular migration by the legislation with obligations of human rights Key words: Migration, Miigrants, European Union, Impact of Irregular Migration. INTRODUCTION Movement of people across the border has been the dominant factor in the 21 st century and is being seen as a potential global development imperative. India is a reservoir of human resource for various countries across the world. The history of migration in India can be distinguishable in four waves of emigration. The first wave filled the labour- lacunae in the plantation in the British along with other colonies, like, Fiji, South Africa, other Caribbean countries.436 The second wave emerged after World War
436 Binod Khadria, Perveen Kumar, Shantanu Sarkar and Rashmi Sharma, International Migration Policy, JNU, (June 3rd, 2019, 14:38) http://lib.jnu.ac.in/sites/default/files/pdf/imds_p/IMDS_Dec_2008_WP_1.pdf Page | 283 II, where the industrially developed countries of Europe and North America, attracted the migrants from India. The massive extraction of petroleum products consequently formed the third wave of migration. The evolution and development of the IT sector during the 1990s in India formed the fourth phase of
437 migration from India consisting of software professionals. The triggered migration from India lacked the regulation of a legal framework and was rather pushed by the factor at home, backed by the gaps in demand supply in the migrated countries. India eventually came up with Emigration Act 1922 that regulated the emigration of low-skilled agricultural labourers but failed to incorporate the provisions relating to prohibition of exploitation of the workers and provisions relating to the skilled and qualified workers438. The flaw was eventually realised and considered by enacting the Emigration act 1983 which made it mandatory for migrants, covered under the category of Emigration Check Required to acquire clearances from the Protectorate of Emigrants’ Office as to protect the worker from the labour market exploitation.439 In consonance with the act, the ministries of External Affair and Home Affairs are invested with powers to regulate the emigration of Indian workers. The Ministry of External Affairs monitors and reports the conditions of Indian nationals and collaborate and negotiate the matters of employments with the host governments. The Ministry of Home affairs, on the other hand, is invested with the power of controlling the exit of the Indian nationals.
THE TYPES OF MIGRANTS People migrate due to various reasons and thus are categorised as follows
a) ECONOMIC MIGRANTS It refers to the migrants who leave their country to work in another country who primarily has the aim of earning a living by engaging in some economic activity. Economic incentives are one of the primary reasons for which people leave their own country to improve their prospects of earning. Poverty and Unemployment are compelling factors that lead to economic migration. They are even pulled to nullify the negative impact of labour shortages arising due to demographic imbalances, contributing to
440 employment generation.
437Ibid. 438Ibid. 439Ravi Srivastava & S.K Sasikumar, An overview of Migration in India, (June 3rd 2019, 16:15) https://pdfs.semanticscholar.org/1e9e/3c62400e435a10d59422d24f394db66dd82b.pdf. 440Supra note 1. Page | 284 b) FAMILY MIGRANTS The economic migrants look for their long term interests too where they need their family to accompany them to their destination country, thus resulting in the inducement of further migration for family reunification. Family reunification is subjected to the laws of the destination country where each country has its own mechanism to formulate the laws in accordance with inter alia labour requirements and performance of immigrants in the country. The family migration fosters the engagement of other family members in economic activities creating a
441 ripple effect and also results in reducing the remittances flow in the original country. c) POLITICAL MIGRANTS The fear of persecution in the homeland leads people to migrate to foreign countries where frequent occurrences of political and ethnic instability cause them to land in asylums. The most severe crisis witnessed by India was during the time of partition where overnight, millions of people had to flee on the other side of the newly demarcated border. d) STUDENTS The internationalisation of higher education has spurred up the mobility of students across the world. This has become an export good for the developed countries 442as the students of developing countries prefer to migrate to the universities of the developed economies. e) ILLEGAL MIGRANTS The influx of illegal migrants has been the core issue across the world. It impacts the socio – demographic profile of the destination country and poses great challenges for the country. They increase the competition in the rat race of livelihood by accepting lower wages than the prevalent rates.443 The solution discovered to deal with the illegal migrants is to deport them which in itself is a complex mechanism. The bilateral agreements between countries are the new devise, created to manage the flow of the migrants across the borders.
INTERNATIONAL MIGRATION: INDIA-EU
441 Ibid. 442 Ibid. 443Ibid. Page | 285 The common features of belief in democratic polity, knowledge based economies and open societies has led to the formulation of the bilateral relationship between India and Europe that has encouraged the migration flow between both the regions.
COLONIAL PERIOD India’s ties with Europe can be traced back to the time when Europe initiated the colonial establishments in India during the 16th century, commencing from Portugal to the Netherlands, then to France and finally with the United Kingdom. India shares a long history of trade, investment, slavery, development with the countries of Europe.
The advent of colonial rule in India witnessed the reversal migration from Britain to India where the more than thousands of migrants were economic migrants who were employed in the administrative arena. The quality and direction of migration changed due to the transferal of political and economic power from Indians to the colonial rulers. The migration from India to Europe consisted of traders and entrepreneurs before the establishment of colonies in India that eventually changed to indentured
444 labourers, slaves, and guest workers during the colonial period. The European agents acted as suppliers to export the slaves to Portuguese, Dutch and French 445. This was replaced by the export of cheap labour from India for the purpose of the plantation after the abolition of slavery in 1834. The exportation of indenture labourers ruled the era which was followed by the exportation of guest workers during the period of 1917 to 1921 due to the abolition of indentured labour. The guest workers emigrated from India and were recruited in low paying jobs and were made
446 to work under hazardous conditions. POST INDEPENDENCE The common historical ties between India and Britain continued post- independence which facilitated high investment and movements of people and a significant increase in emigration flow increased significantly. India maintained its diplomatic ties all around the world with the help of non- alignment
444 Basant Kumar Potnuru & Vishishta Sam, India- EU engagement and international migration: Historical perspectives, future challenges, and policy imperatives. SCIENCE DIRECT, IIMB MANAGEMENT REVIEW, (June 5th, 2019, 12:24) https://reader.elsevier.com/reader/sd/pii/S0970389615000026? token=DAD2CEC69BCC6C2FDA8B790A7CB22B32BE565F7A8DB3BA96C6BAE92A1A343D3 CFAC100CEEE8D992AB3B112B9CF5AA484 445 Ibid. 446 Ibid. Page | 286 foreign policy, receiving assistance in developments from Eastern as well as western blocks and even established relations.447 The UK even filled its lacunae of doctors in the health care sector by looking at the Indian doctors who were migrating to the US and thus, coined the term ‘Brain drain’ for the doctors. In the decade of 1960s and 1970s, India got entangled in subsequent wars with China, Pakistan, and disputes with other countries that deteriorated India’s diplomatic relations with the countries. This halted the migration from India to these countries and vice versa. Soon, 1965 onwards the US started to embrace more migrants and surpassed Canada and the UK as the most preferred destination in West chosen by the skilled Indian emigrants448. The trade with the countries of the European Economic Community accelerated gradually soon after India replaced the licence raj system by liberalising its economy. The economic crisis and burgeoning fiscal deficit affected the international relations of India followed by the capitalism v communism struggle opening the doors of globalisation for India. Globalisation brought advancement in the international policies of India and strengthened its relations with the EU through various summits and bilateral agreements. This led to the increase migration of people between the two regions that raised the problem of irregular migrants which posed problems for both the regions. A clear roadmap has still not been laid down by either of them to observe the movements of the people.
IRREGULAR MIGRATION Irregular migration constitutes for irregular entry and irregular stay. 449The irregular entry is when a migrant tries to enter the international boundary illegally or without any proper authorisation whereas irregular stay constitutes to be when a person has entered the boundaries by completing all the legal formalities and through a visa but has exceeded his stay in contrary to the authorisation granted. They also constitute of the people who were irregular but subsequently became regular like asylum
450 seekers.
447 Basant Kumar Potnuru & Vishishta Sam, India- EU engagement and international migration: Historical perspectives, future challenges, and policy imperatives. SCIENCE DIRECT, IIMB MANAGEMENT REVIEW, (June 5th, 2019, 12:24) https://reader.elsevier.com/reader/sd/pii/S0970389615000026? token=DAD2CEC69BCC6C2FDA8B790A7CB22B32BE565F7A8DB3BA96C6BAE92A1A343D3 CFAC100CEEE8D992AB3B112B9CF5AA484 448 Ibid. 449Mark Provera, The Criminalisation of Irregular Migration in the European Union, CEPS, LIBERTY AND SECURITY IN EUROPE, (June 6th, 2019, 00:16) http://aei.pitt.edu/60856/1/Criminalisation_of_Irregular_Migration.pdf 450 Ibid. Page | 287
IMPACT OF IRREGULAR MIGRATION Europe has been the prime target for migrants all over the world. The irregular migrants acquire the labour market by agreeing to work on fewer wages. A study revealed that almost three quarters of the people interviewed were illegal migrants working in the UK.451This angers the residing population of Europe resulting in anti- immigration protests. Their low rates availability discourages the firms to invest in technologically equipped machines which thus leads to a decrease in productivity. They dismantle the mechanism of competitive pressure that motivates an employer to look after the benefits of the employee.
The recruitment of the illegal migrants in informal economy give them an exit door to escape the payment of direct taxes leading to losses to the exchequer. 452The illegal migrants too are deprived of various benefits that would have been otherwise available to them like, health and educations benefits.
The social impact of irregular migration is the worst as they endanger the security of the destination country. Their status makes them vulnerable to criminal exploitation promoting terrorism in the world. The migrants pose a great challenge to the destination country giving rise to the agitation from the residents from the public.
CASE STUDY ON IRREGULAR MIGRATION FROM INDIA TO THE EUROPIAN COUNTRIES WITH REFERENCE TO THE STATE OF PUNJAB
Migration of people of Punjab from India to different overseas countries especially to Punjab began when the Sikhs started to join Indian Army after the British took over the Punjab area in the year 1849. After their inclusion in the British Army, these Sikh soldiers were then taken too many distant places across the world wherever the British had their colonies and they ruled that places. The idea in the minds of people to migrate from India to foreign countries started to make rooms when the Sikh soldiers which returned those foreign lands brought stories and different visions with themselves and their stories and visions fascinated others to migrate too. Many of the young population in that land got
451 Laura Chappell, Alex Glennie, Maria Latorre & Sarah Mulley, The impacts of irregular migration, IPPR, (June 5th, 2019, 18:21) https://migration.etuc.org/en/docs_en/6%20The %20impacts%20of%20irregular%20migration.pdf 452 Ibid. Page | 288 intent to try their lucks and decided to go to British colonies in search of fortunes. This led to the story of the migration of people from Punjab to overseas countries.
Indian migration trend currently being followed can be tracked since the 18 th Century. It was a time when slavery practices were eradicated and the colonial rulers were facing the requirement of labors which can work on their plantations. Punjab has a long tradition of international migration, especially from the central Doaba region.453 The migrations of young men from these places can be traced from the year 1880s. There has been a stream of young people migrating from the villages of Punjab to overseas countries especially Europe. These migrations are being considered as the result of two factors, push and pull factors. The push factors are no generation of good revenues from the agricultural sector, unemployment, social restrictions, and etc. The pull factors which attract these migrants to migrate to these countries are better job opportunities, education, a better lifestyle and etc.
Migrations from India to other countries more specifically from Punjab to overseas countries like European countries have increased significantly and not just migration but irregular migration too has increased from Punjab to Europe in the recent few years. The instances of migration from Punjab to European Countries can be garnered from criminal cases that have been registered by the European and North American countries. From the figures in the list of nationality verifications that were received from European countries and North America in the context of India, Punjab figures top the list with maximum migrants being Punjabis. For example, there are about 70% of nationality verification cases which have originated from the United Kingdom and relates to Punjab.
Irregular Migration as a concept includes different types of people and stages through which they have to pass for remaining in that particular destination. There is no uniqueness in the patterns of these irregular migrants all of the migrations vary in nature. Nevertheless, there are some features which are common in these migrations like naive youth who get flown by the stories of foreign countries and obsess about it, the ones which are neither highly educated nor skilled and the ones who fall in the traps of such networks of intermediaries who attract the youths and they tend to migrate from India to overseas. This pattern of migrants and their then stories attract the latter potential migrants to migrate too and then this becomes a trend or pattern for every youth or person from the neighborhood to
453 Doaba region in the Punjab is the area between two rivers and comprises 4 districts – Jalandhar, Hoshiarpur, Kapurthala& SBS Nagar. This is the region with highest education and awareness level and smallest landholdings Page | 289 migrate as well. Though, the latter does not reveal all the aspects of their experiences of staying abroad to others.
From the end of the prospective migrants, the end justification is that the lack of awareness of the result of their migration or lack of trust in the legal channel which they should have opted and could have been transparent and impersonal in nature.
However, the irregular migration channel which is also aided by the travel agents have an element of personal touch and assures success that works from the perspective of prospective migrants even though there are chances of a higher amount of payments. The fact that some of the families may rely on that the migration of some of their family members, to the overseas countries in Europe or any other part of the world, was successful can act as the stigma that if they opt for the same mode of migration will be successful and ethical. The social structure followed by the villagers in this regard is traditional and is based on the caste system, landholdings, family backgrounds, and educational achievements has now started to disgust families on an additional factor like the race between the families whose members are living abroad and the ones whose family members are not living abroad.
Some statistics related to migration: A vast majority of immigrants from India go to North America and Gulf states. The US and Canada alone host 80% of Indian migrants with tertiary education (Fargues, Philippe et al., 2009). Indians represent a small portion of all immigrants in EU27 – 437,124 immigrants born in India live in Europe representing 1.5% of 30,798,059 immigrants and 5% of India’s 9,987,129 estimated emigrants (stocks in 2009) (Fargues, Philippe, et al., 2009). The estimated irregular migrant population in EU states is 1.9-3.8 Million (0.38 – 0.76%) out of a total population of 500 million. It is
454 much lower than 3.67% in the US (Morehouse et al, 2011).
THE EU LEGISLATION There has not been any criminal sanction imposed on the individuals entering or staying within the boundaries of the Union without any authorisation. The secondary legislations of the EU brings criminal consequences for the irregular migrants. 455 The Schengen Borders Code456 regulates entry in the member states territory which is contemplated on the 454 Viresh Kumar Bhawra, Irregular Migration from India to the EU: Evidence from the Punjab, European University Institute (June 05, 17:45), https://www.mea.gov.in/images/pdf/IrregularmigrationfromIndiatotheEU.pdf 455 Ibid. 456 Regulation EC No. 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across Page | 290 people due to the unauthorised crossing of the territories other than the borders crossing points. The person doing so will be deemed as a third country national staying illegally under the Return Directive 457 placing an entry ban and possible detention pending approval.458The person may be detained immediately by the Members State by commencing the removal or return procedure. The procedures and requirements as per SBC are to be fulfilled in order to legally reside in any member state which is
459 beyond just carrying a legitimate visa.
The people in solidarity with the irregular migrants are the subjects to criminal sanctions in Facilitation Directive460, Carrier Sanctions Directive 461and the Framework Decision on facilitating unauthorised transit462, for helping the irregular migrants to enter into the territories. These secondary legislations mandate the Member State to formulate specific provision regarding the same. The facilitation directive leaves a room for an exception based humanitarian assistance but making it a discreation for the Member States. Supporting the Facilitation Directive, Framework Decision too promotes the formulation of criminal penalities against the transgessors of the Facilitation Directive. 463 The Framwork Decision allows to confiscate the vehicle connected with the offence and bans the person from practicing the offensive occupational activity through which he is bringing the irregular migrants in the territory of any
464 Member state and finally permiting deportation.
The EU through Return directives provides legislation concerning the stay of illegal migrants who are not covered under the ambit of SBC due to their non fulfilment of requirements465. This Directive invests some significant guarantee to people coming within its scope by guaranteeing them the right to appeal a return decision466, access to basic education and healthcare and etc.,
borders (Schengen Borders Code). 457The Return Directive, Directive 2008/115/EC, European Parliament, article 6(1), 3(1) and 3(2). 458 Supra note 14. 459 Ibid. 460Facilitation Directive, Council Directive 2002/90/EC (Nov 28th 2002) 461Carrier Sanctions Directive, Council Directive 2001/51/EC, implementing Schehen Agreement. 462Framework Decision on facilitating unauthorised transit, Council Framework Decision (Nov 28th, 2002) 463 Supra note 14. 464 Ibid. 465 Return Directive, art. 2(1), 3(1) & 3(2). 466 Return Directive, art. 13. Page | 291 THE MEMBER STATES LEGISLATIONS THE UNITED KINGDOM The proportion of irregular migrants to their arrest is very less in the United Kingdom. The state policy for migration in the country commonly enforces the removal policy and reserves criminal law for the most serious offences. The country has enforced Immigration Act 2014, which required that the immigration status of the tenants or temporary migrants accommodating in their rented places are to be checked by the private landlords. The Act also mandates banks to scrutinise the immigration offender before opening a bank account.467 The driving licence is needed to be revoked of any person living illegally and has to be removed from the country. The 2016 Immigration Act introduced new sanctions for illegal migrants enabling more stringent provisions regarding access to education, healthcare,
468 drivinglicence to irregular migrants along with new measures of removing them.
ITALY To avoid the provision of the Return Directive and improve the expulsion system regime of the administrative based system is the basis of the criminalisation migration provisions in Italy. From protecting the undermining of the expulsion procedure, stringent immigration controls were enforced through the Bossi Fini law 2002.469 The 2008 Security Package criminalised irregular migration along with solidarity and its consequences 470sentencing a person two years imprisonment.471Following the judgment in Archughbabian case472, Italy decreminalised the irregular stay replacing it with payment of
473 substantial fines.
SWEDEN Despite the passage of Aliens Act 1927, Sweden witnessed a great inflow of migrants which aimed at decreasing the competition from the migrants for protecting the jobs of the domestic labour force and
467 Erica Consterdine, Hostile Environment: the Uk government’s draconian immigration policy explained, THE CONVERSATION, (June 6th, 11:31), https://theconversation.com/hostile- environment-the-uk-governments-draconian-immigration-policy-explained-95460. 468 Ibid. 469 Supra note 14. 470Constitutional court, Judgment 249/2010, Massima Numera 38420, (July 5th, 2010). 471 Supra note 14 472 Alexandre Achughbabian v Préfet du Val-de-Marne, case c-329/11, Grand chamber (Dec 6th, 2011) 473 Supra note 14. Page | 292 control the immigration which did not meld with the country’s population.474The 1968 law ensuring the same welfare provisions for the guest workers as that for Swedish citzens. The 2016 temporary legislation of 3 years has made family reunification difficult by stopping the immigrants who have
475 received the residency permits from bringing their immediate relatives
NETHERLANDS The Netherlands through the series of acts has adotopted the dual strategy of exclusion and identification. The irregular is excluded from availment of the facilities line education, employment and employment forcing them to leave the country. The law and policy of the Netherlands are formulated on the pathway of return of irregularity and accordingly impose light or heavy entry bans. 476 Detention is an effective tool for the Dutch government for the return of the illegal migrants.
CONCLUSION
The research concludes that public trust has a significant role to carryout in migration law consistency when coordinated towards irregular migrants through the use of true and reasonable treatment and procedures consistent with obligations of human rights. The role of public trust in encouraging cosistence with migration law regarded as a mystery. To a great extent, it orginates from the fact that the people whose trust a state wishes to engender (irregular migrants) are also those people whom a state does not want in its area. This is necessarily the case that public trust has no pertinence in the field of migration law consistency. Further, it shows that public trust also assumes a great significat role to oversee the consistency of the people who act in solidarity with irregular migrants namely citizens and regular migrants which particularly given the seriousness of the measures against those encouraging irregular migration and the presence of protection to criminalising measure. Public trust is directed towards those acting in solidarity with irregular migrants when the seriousness of the punishments
474Admir Skodo, Sweden: by turns Welcoming and Restrictive in its Immigration Policy, MIGRATION POLICY INSTITUTE, (june 6th, 2019, 12:03) https://www.migrationpolicy.org/article/sweden-turns-welcoming-and-restrictive-its-immigration- policy 475 Rachael Cerrotti, Sweden was among the best countries for immigrants. That’s changing, PRI, (June 6th 2019, 12:41), https://www.pri.org/stories/2017-09-11/sweden-was-among-best- countries-immigrants-thats-changing 476 Supra note 14. Page | 293 mulled over in the select Member States’ legislation and resistance proof to national measures. The impact of irregular migration is the worst as there is a risk to the security of the country to which migrant moved. However, the research also concludes that an understanding of the medium of outcomes of criminalisation measures upon people, as opposed to their legal form, is essential in any attempt to accomodate regulatory measures and profound quality.
PROSTITUTION-AN UNRECOGNIZED JOB
By.Manu Tiwari & Nivedita
ABSTRACT
Prostitution is known to be the oldest profession in the world. It is practiced in almost all countries and in every type of society and is also a topic of intense debate, yet it is the most despised profession. In India, a new definition has been given for the word ‘Prostitution’ in the Government of India’s “Prevention of Immoral Traffic Act-1987, meaning “Sexual exploitation or abuse of persons for commercial purposes.” However, in Vedas, the earliest known literature refers to prostitution as an organized and established institution477. This profession which provides employment and feeling of independence to many vulnerable or lost women has always been looked down by society. This article begins with the discussion of origination of the prostitution and further examines the prostitution from the perspective of the society, whether this profession makes the participant weak enough to be considered as a slave or is a declaration of liberation both sexually and economically. It further examines the prostitution laws
477Mohapatra, A. (2019). Prostitution in India: Issues & Reasons… - Aditya Mohapatra - Medium. [online] Medium. Available at: https://medium.com/@adityamohapatra_28039/prostitution-in- india-issues-reasons-7a6c1de962d0. Page | 294 throughout India. However, the conceptualization of commercial sex as a global social problem or a platform for activism is a matter of endless discussions. HISTORY AND ORIGIN
Prostitute is derived from the Latinprostituta. Some sources cite the verb as a composition of "pro" meaning "up front" or "forward" and "stituere", defined as "to offer up for sale”478. The earliest record of Prostitution as a profession is dated back in 2400 BCE and these describe a temple-brothel operated by Sumerian priests in the city of Uruk. This temple gave shelter to women and was divided in three categories. The first category of women could only perform sexual rituals in the temple; the second category of women served the visitors while the third category was treated to be the lowest category and used to find customers on the streets. Throughout the middle ages, the term prostitution has remained unclear and Even though medieval secular authorities created legislation to deal with the phenomenon of prostitution, they rarely attempted to define what a prostitute was because it was deemed unnecessary "to specify
479 exactly who fell into that [specific] category" of a prostitute.
Prostitution has been prevalent in the Indian History since the ancient time. In India, the Vedas, the earliest of the known Indian literature, abound in references to prostitution as an organized and established institution. In the epic Ramayana, some tradition is mentioned about giving his wife to other men for money by public actors or dancers. In the epic Ramayana, the word courtesan is also present.480 According to the Indian History the prostitutes in the earlier time were called Devdasi who were treated with respect and dignity but this Golden era lost its prosperity and status in the hands of the British and at present there are about three million female sex workers in India, according to a survey done by ministry of women and Child development.
PERSPECTIVE
Is prostitution a profession – a job – or not?
478Perkins & Lovejoy 2007, pp. 2–3 479Rollo-Koster, Joelle (2002). "From Prostitutes to Brides of Christ: The Avignonese Repentises in the Late Middle Ages". Journal of Medieval and Early Modern Studies.31 (1): 110. doi:10.1215/10829636- 32-1-109. 480"Sloka & Translation". www.valmiki.iitk.ac.in.Valmiki Ramayanam. Page | 295 Some believe that prostitution is not a job or employment while for some; sex work is a work that requires skill, time and art. These views differ from person to person across the countries whether they are in the business or not.
Answer lies in the perspective of the world and sex worker themselves.
A socialist views towards prostitution business : (i) Calling it “the world’s oldest profession,” but at the same time it does not even register in our minds as a job. People with conservative, orthodox religious views, believe prostitution as an immoral act because it involves sex for money, and they consider prostitution as a sign of society’s moral decay. (ii) They believe that considering prostitution as an employment or job is like a green light for pimps to populate brothels to meet the increased male demand for the prostitution of the most vulnerable women. (iii) People say that one should never view inside of a woman’s body as a workplace whether she herself demands it to be treated in the same way or not. (iv) These people think of sex workers as people in need of protection from exploitation – in need of protection from men. It implies that what is happening in this flesh-for-money transaction has real consequences for the human being who has to provide the flesh481. Feminists views on prostitution482 : (i) Anti-prostitution feminists hold that prostitution is a form of exploitation of women and male dominance over women, and a practice which is the result of the existing patriarchal societal order. These category of people are of the view that prostitution has a very negative effect, both on the prostitutes and on a society as a whole, as it reinforces stereotypical views about women, who are seen as sex objects which can be used and abused by men. They cite similarities between prostitution and violence against women. Most women in prostitution have suffered the violence.
481 Is prostitution really a “profession”? (Only when it serves men’s purposes.). (2019). [Blog] Available at: https://xyonline.net/blogs/25/prostitution-really-profession-only-when-it-serves-mens-purposes. 482 O’Neill, Maggie (2001). Prostitution and Feminism. Cambridge: Polity Press. pp. 14–16. ISBN 978-0- 7456-1204-1. Page | 296 Prostitution abolitionists see prostitution itself as a form of male violence against women and children. (ii) Pro-prostitution feminists hold that prostitution and other forms of sex work are valid choices for women and men who choose to engage in it. In this view, self proclaimed prostitutes in a business of prostitution must be differentiated from women forcefully indulging in prostitution, and feminists should support sex worker activism against abuses by both the sex industry and the legal system. They have voiced their opinion in support of prostitution and other forms of sex- work. Support is based on ideas of economic empowerment, independence and autonomy of choice, comparisons to sexual role in marriage, and challenging outdated societal notions of the proper expression of women's sexuality. One view is that sex work not only empowers women, but it provides women with greater opportunities for financial advancement.
ENSLAVEMENT OR EMPOWERMENT The definition of prostitution varies from country to country; some treat it as a criminal activity while others define it to be an empowering profession. The arguments regarding its status are equally strong and thus make it a topic of controversy and endless debate. A significant argument against the empowering status is men’s dominance over a woman, thereby treating prostitution as enslavement. It is mentioned that a woman can never be a “sex worker” as she is turned into a “sex object” by structural and power inequalities between men and women483. Prostitution portraits that it is acceptable for a man to treat a woman as a sexual tool over which he has total control. The inequalities in mankind give rise to survival sex or sex trafficking where women are coerced to surrender to professions like prostitution and other sexual exploitations. Trafficking in person for sexual favors is demonstrated as a global criminal phenomenon and regardless of this fact sex work sends a message that it has a good market and abundant money.
On the other hand, supporters claim that prostitution empowers women by giving them a right to choose. Researchers in Harvard University state that “this framework of legalized prostitution, distinguishes prostitution from other sectors within the sex industry, such as: trafficking and
483Prostitution:Sex Work, Policy and Politics (Sanders, O'Neill and Pitcher, 6)
Page | 297 coercion”484. Prostitution as a profession by choice is different from forced prostitution, women have a right over their life and body and no one is a victim in this process. Women treat it to be a source of making money and have found a genuine sense of purpose and meaning in their work. Sex work which is freely and consensually entered into is just like any other labor which provides independence to its participants. For adults who freely choose prostitution – either as a declaration of sexual liberation or as an economically rational decision based on income criteria, it is a gainful employment giving an authority to the people to self determine, while some assert that this 'profession' can be empowering and that legalizing and regulating all aspects of prostitution will mitigate the harm that accompanies it485. Most of the prostitutes are women so it is a significant feminist issue and it is argued that prostitution as an act of selling sex need not be inherently exploitative. Prostitution is a reality and is a source of employment making it an empowering profession. LEGALISATION AND DECRIMINALISATION OF PROSTITUTION Certain issues have remained a part of the society since decades but one of the paramount debates is decriminalization or legalization of prostitution. In defending the legalization of prostitution, the main argument is that the current legal framework fails to appropriately provide protection to women from obligatory forces operating on their decisions to enter or be a part of prostitution. Respecting the individuals who are identified with this profession, government policy should focus on bettering their rights. It should focus on bettering the industry rather than destroying it, for as Richards claims, to oppose prostitution is to arbitrarily restrict sexual liberty486. Prostitution should be treated just like any other labor without any special regulatory mechanism. Most of the laws which are formulated on prostitution are made on presuppositions that prostitution is immoral, this makes women the immoral participants, thereby putting a ban on their basic right to choose or raise a voice. By decriminalization of prostitution, forced women participant, illegally trafficked or abused women would also fear less for their arrest and
484Asia's Dirty Secret: Prostitution and Sex Trafficking in Southeast Asia, Michelle Kuo
485Jimmy Carter 39th President of the United States "To Curb Prostitution, Punish Those Who Buy Sex Rather Than Those Who Sell It," Washington Post May 31, 2016 486D. Richards, Sex, Drugs, Death, and the Law, (1982, New Jersey: Roman and Littlefield) 109
Page | 298 ill treatment if they seek assistance. The laws which are being formulated should focus on upgrading the relations between the workers and police men while seeking relief and also women who have chosen it as their profession should not be coerced to leave it if they choose to. The workers should be provided with routine health check-ups and vulnerability of these sex workers should be checked upon. The prostitutes are more susceptible to exploitation both physically and economically so the government should come up with laws to curb these issues rather than making laws which deny the existence of prostitution. To preserve the human rights of the sex workers, state should employ certain methods for their rehabilitation and preservation. The profession of prostitution has expanded in past years and history shows that women who choose this at their own will are never provided with safe working and health conditions and more the society is trying to make it an immoral act, the more it is hidden and becoming riskier. Decriminalisation is just one of the several obligatory steps which the government should take to provide protection to women suffering human right abuse.
Annie Sprinkle asserts that sex workers “challenge sexual mores”, “teach people how to be better lovers”, “make people less lonely”, and “are rebelling against the absurd, patriarchal sex- negative laws against their profession487.” Legalization itself would reduce the amount of criminal activity and illegal business which are related with the sex work, because then the people engaged in the work would come up to fight for their rights which are not even provided currently because of its criminalized nature. According to statistics of The Oxford Handbook of the Economics of Prostitution the prostitution will bring billions of contributions to the economies worldwide488which signifies that this will create a new taxable sector that will bring revenue to the government. With the policy measures focused on the health, safety, and choice of all sex workers, countries will be able to revolutionize the sex work industry, providing and protecting, under a feminist welfare approach, for the rights of all those involved.
LAWS REGARDING PROSTITUTION IN INDIA
489 The Constitution of India
487A Sprinkle. (n.d.) 40 Reasons Why Whores are my Heroes
489 The Constitution of India, arts. 23, 39(e), 15(3) Page | 299 Article 23 deals with prohibition of trafficking in human beings, forced labour and all forms of exploitation. This was aimed at putting an end to all forms of trafficking in the human beings including prostitution and beggary. Article 39(e) deals with the health and strength of workers, men, women and the tender age of children should not be abused. Article 15(3) enables the state to make special provisions for woman and children even if they are discriminatory.
The Indian Penal Code490
The Indian Penal Code lends a helping hand to the special laws enacted to curb prostitution by attacking the source of this evil.
Section – 354: A penalty of two years imprisonment or fine or both was given for the offence of assault or use of criminal force upon a woman with an intent to outrage her modestry.
Section -366: Kidnapping or abducting a woman, and in order that she may be forced or reduced to illicit intercourse with any person, including a woman to go from any place in order that she may be reduced to illicit intercourse by criminal intimidation or by an abuse of authority or under any other compulsion inducing a girl who is under 18 years of age, by any other means, go to from any place or to do any act, in order thatshe may be forced or reduced to illicit intercourse, kidnapping or abducting any person in order that she may be subjected to the unnatural list of any person, each of these was a grave offence punishable with imprisonment of either description for 10 years or fine or both.
Section 372: Selling, Letting for hire or otherwise disposing of, or buying, hiring or other obtaining possession of any girl under 18 years of age for any unlawful or immoral purpose was made an offence.
Section 375: Sexual intercourse with a woman under 16 years of age was treated as rape not withstanding that she may have consented to it and punishable for rape was upto 10 years.
490The Indian Penal Code, 1860 (ACT NO. 45 OF 1860), s.354, 366, 372, 375. Page | 300
The above given provisions made in the Indian Penal Code did not make prostitution illegal, nor did it make procuring a criminal offence under all condition. But, as far as adult females were concerned the provision was that it must be accompanied by kidnapping abducing or criminal intimidation.Whereas it was an offence in the case of minor girls under 18 years of age for their buying and using for immoral purposes and importing into India girls under 21 years of age for immoral purposes. Thus, the efforts
491 on the part of the Government of India to check prostitution were salutary.
Information Technology Act, 2000492 Undersection 67, publication and transmission of pornography is an offence.
Digital technology has also allowed child pornography to be produced without a child actually being present, introducing into the review of laws on child porn issues that are complex and that go beyond the argument that child pornography records a criminal act. Trafficking, Commercial Sexual Exploitation, Sex tourism and Pornography are all interrelated crimes.
Indecent Representation of Women (Prohibition) Act, 1986 The object of the Act was to prohibit indecent representation of women through advertisements or in publications, writings, paintings, figures or in any other manner. It defines ‘indecent representation of women’ as the depiction in any manner of a figure of a woman, her form of body or any part thereof in such a way as to have the effect of being indecent, or derogatory to, or is likely to deprave, corrupt or injure public morality.
The Juvenile Justice (Care and protection of children) Act, 2000 The Act was passed in consonance with the Convention on the Rights of the Child, to consolidate and amend the law relating to the ‘juveniles in conflict with law’ and ‘children in need of care and protection’.It has elaborate provisions for the care, 491 Haveripeth Prakash, “Prostitution and Its Impact on Society-A Criminological Perspective” Vol. 2(3), 31-39, March (2013) 492 The Information Technology Act, 2000 (Act 21 of 2000), s. 67. Page | 301 protection, treatment, education, vocational training, development and rehabilitation of children rescued from those procuring, inducing or taking person for the sake of prostitution and detaining person in premises where prostitution is carried on.
The non-government voluntary social service organizations and rehabilitation of juveniles and children who need care and protection, there is hardly any justification for separate hostel or school for the prostitute’s children. Children of prostitutes should not be permitted to live in undesirable surroundings of prostitutes homes. The court ruled in favour of shifting these children to existing juvenile institutions. There was an implicit assumption that these juvenile institutions would be better run and organized and help the rehabilitation of these children. Suppression of Immoral Traffic in Women and Girls Act, 1956493 Trafficking was first dealt with by the Suppression of Immoral Traffic in Woman and Girls Act, 1956 which was passed on 31 December, 1956. The legislation was enacted in pursuance of the U.N. Conventions of 1950. The Act was enacted under Article 35 of the Indian Constitution with the object of inhibiting or abolishing the immoral traffic in women and girls. The Act aimed to rescue the exploited women and girls, to prevent deterioration of public morals and to stamp out the evil of prostitution which was rampant in various parts of the country. According to SITA, prostitution is not illegal per se. The prostitute can carry on her trade wherever she likes subject to certain restrictions.
Section 7(1) of SITA operated against the interest of the prostitution; the sexual partner who brings her for sexual gratification gets away because of the inherent defects of the act. Being a penal statute SITA should have atleast some welfare provisions.
Section 19 is the only section which says that if a women or a girl wants to go out the profession she should be placed in a protective home or under the care of the court; but
493 The Suppression Of Immoral Traffic In Women And Girls Act, 1956 ( ACT NO. 104 OF 1956), s. 7(1), 19. Page | 302 the prostitutes are, in the majority of cases, the unfortunate victims of circumstances.
The Immoral Traffic Prevention Act, 1956494 The Suppression of Immoral Traffic in Women and Girls Act, 1956 proved to be inadequate to combat the increasing commercialization of trafficking. Parliament amended the law in 1970 and later in 1986. As a result of substitution of the words “ Immoral Traffic Prevention Act” for the words “ Suppression of Immoral Traffic in women and girls Act” made by section 3 of the amending Act No 44 of 1986, the principal Act was short titled as the Immoral Traffic Prevention Act, (104 of 1956). Section 9 of Act provides greater punishment to persons who cause, aid or abet the seduction of women and girls, over whom they have authority or who are in their care and custody for prostitution. Section 2(j) of the Act empowers the Central Government to appoint trafficking officers.
Under Section 15 and 16 of the Act - these special police officers can search without warrant any premises where this offence is suspected of being committed, and they can rescue any person who is being forced into prostitution or is carrying on or is being made to carry on prostitution. The Criminal Procedure Code, 1973495 The Criminal Procedure Code of 1973, also protects girls from sexual exploitation. It states that a presiding Judge or District Magistrate may, upon complaint that a female child under the age of 18 years is abducted or unlawfully detained, order the immediate restoration of the girl to her liberty or to her parent, guardian or husband.
Section 98 is intended to give immediate relief to a woman or girl abducted or detained for any lawful purpose. An action under this section cannot be taken except upon complaint made on oath.
CONCLUSION
494The Immoral Traffic (Prevention) Act, 1956 [India], s. 2(j), 9, 15, 16. 495 The Code Of Criminal Procedure, 1973 (ACT NO. 2 OF 1974), s. 98. Page | 303 It is important to promote a healthy sexuality which is based on true consent, respect and choice. It may be said that the practice of prostitution is a serpent that has many facets which must be dealt with at various levels and from various angles, requiring a radical change in the society. It is important to realize that “economic hardship is a form of psychological stress. Mental stress of whatever kind is one of the commonest precipitation factors in abnormal conduct”. Hence, efforts should be made not only to alleviate every variety of psychological stress, also involving a comprehensive review of the whole problems of social customs and mores regarding marriage,
496 divorce, sex education as well as socio-economic conditions of prostitutes.
MALE SEXUAL ASSAULT IN INDIA: AN IGNORED CONCERN
Introduction
Recently, Ravi Karkara who was entrusted to promote gender equality was fired from UN Women after men complained of sexual harassment against him. A number of actors in Bollywood are coming forward with their stories of how they were sexually assaulted. Yes, you read that right! Men can be the victims of sexual assault too. But in India we have been ignoring that since ages. We have been ignoring that sexual perpetrators see no gender. In this patriarchal society, men are viewed as protectors and not the victims; they have to protect themselves and all the others who are dependent on them. Where women are portrayed as being pure, submissive, docile and free of any vices who need to be protected from the outside world, men are portrayed as being dominant, powerful and superior to women. Men are raised from an early age with messages such as "be strong" or "Don't be a sissy and cry!" and hence any discussion of men being abused is ignored and any such possibility is ruled out. Often signs that abuse has occurred with children and teens show up in how they function at home and school. With adult men the aftermath of their sexual assault is usually seen in PTSD (Post Traumatic Stress Disorder), which causes their relationships to suffer from withdrawal, and feeling on edge. Being sexually assaulted can be unbearable for men that don't want to be seen as a 'victim' because it goes against the messages they were raised with of what it means to be a "real man". Talking about
496 Sion A., Abraham ‘prostitution and Law, 1st ed, publisher western printing service Ltd Londan, 26 (1977) Page | 304 sexual abuse is considered a blemish on their manly image. The society thus denies recognizing any sexual assault against men and finds it hard to believe that men can be raped too.The laws have been shaped this way too providing no protection to other genders except women against sexual assault. Still being in the shadow of male dominance men who come up with their surviving stories are laughed at and are not paid attention to. Though steps around the world are being taken by making the laws gender neutral, but in India still any gender neutral law is met with protests from women groups arguing that it harms the interests of women. It has to be realized that by ignoring the plight of male survivors they are put against gross injustice.
Laws in India for protection against sexual assault
Laws in any society reflect its perspective towards different issues. Even the law in India, doesn’t recognize that men can be sexually harassed. There are various laws in our country to provide justice in case of sexual assault but all these laws are gender specific that protect only women against men.
The definition of Rape as given in Section 375 of Indian Penal Code, 1860 begins with, “A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman…”497 and further describes the circumstances which constitute rape and also the exceptions to it. The definition indicates that a rape offender is necessarily a man and the raped is necessarily a woman, leaving no space for justice to male survivors. Sections such as 354, 354A, 354B, 354C and 354D that deal with “Assault or criminal force to woman with intent to outrage her modesty, Sexual harassment and punishment for sexual harassment, Assault or use of criminal force to woman with intent to disrobe, Voyeurism and Stalking”498 respectively were inserted through Criminal Law (Amendment) Act, 2013 also protect only the interests of women. Other sections that were inserted or amended through Criminal Law (Amendment) Act, 2013 are 376, 376A, 376B, 376C, 376D, 376E, 503, and 509 of IPC, that deal with “Punishment for rape, Punishment for causing death or resulting in persistent vegetative state of victim, Sexual
497Indian Penal Code, 1860 498Criminal Law (Amendment) Act, 2013 Page | 305 intercourse by husband upon his wife during separation, Sexual intercourse by a person in authority, Gang rape, Punishment for repeat offenders and Word, gesture or act intended to insult the modesty of a woman”499 respectively and provide protection against any kind of sexual abuse but all these laws are again gender specific that ignore the interests of male or transgender survivors. Even the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 which was passed after the guidelines issued in case of Vishakha v. State of Rajasthan500 for protection of women at the place of their work also doesn’t acknowledge men going through similar circumstances.
Only way for male victims to get justice is through Section 377 of IPC which criminalizes any non- consensual sexual acts that are against the order of nature, but these laws also protect only against sodomy. Although Protection of Children from Sexual Offences (POCSO) Act, 2012 safeguards the interest of children below eighteen years of age against sexual abuse irrespective of gender.
Modern laws in India against rape, sexual harassment have developed after scores of feminist movements criticized the condition of women in Indian society. These laws are gender specific considering the vulnerable position of women. In a patriarchal society that India is, men occupy the dominant position and women are considered as the other sex, other than the males. Women usually face sexual assault as men want to show their social control. In June, a Reuters Foundation study declared India to be the most unsafe country for women.501In 2016, of the 3.38 lakh crime cases against women, rape cases made up 11.5% of them. But only 1 in 4 rape cases ended up in conviction.502Mathura Rape case, Vishaka guidelines and Delhi gang rape have been the landmark cases, the struggle after which has been successful in broadening the definition of rape and other sexual assault laws. Hence, women have remained as a marginalized section in need of laws for their protection.
Perception of Male Sexual Abuse
499Criminal Law (Amendment) Act, 2013 500(1997) 6 SCC 241 : 1997 SCC (Cri) 932 501Roshan Kishore, Why the severity of India’s rape problem can’t be captured by crime statistics, HINDUSTAN TIMES, Aug 09, 2018 502Priya Kapoor, Over 30,000 rape cases; only 1 in 4 convicted, THE TIMES OF INDIA, Apr 13, 2018 Page | 306 Instances of male rape have started to come forward.According to a Government of India study of 2007, 53.2% of children reported having been sexually abused at least once in their lifetime. Out of these, 52.9% were boys. Insia Dariwala, a social activist, conducted an online survey consisting of 160 men. Out of these, 71% admitted that they had been sexually abused as children. Moreover, 84.9% of these men had never told about the abuse to anyone, not even the people they were closest to. The reasons varied from shame, confusion, and fear to even guilt.503 Traditionally the incidents of male sexual abuse never came forward because of the fear of social ridicule or how others would react to it. In most of the cases parents admit that they couldn’t even think that such things could happen to boys.
A post from Mumbai was shared which narrated the story of a boy who was raped for eleven years by his uncle and his friends. It all started when he was just seven years old and his uncle while giving a bath forced him to give a blow job. For eleven years he couldn’t tell anyone because he thought he wouldn’t be considered a man- enough to bear and endure all pain, and when he tried to get justice he realized that there were no laws for that. Another story was from Patiala where a five year old was raped for two years when he would walk down to a natural park. He thought that his masculinity would be questioned and all the shame would be on him if he told anyone about it. A number of other stories by the actors have also been shared.
Male rape has always been brushed aside by labeling it as a problem of few as for long it was believed that men were raped only in prisons. It has been neglected for years because of the common belief that a man cannot be forced to engage in anything that he doesn’t want to. Also the social generalization relating to ‘male invulnerability and masculinity’ discourages rape survivors to raise their voice. A man being raped especially by a woman is viewed as ‘losing manliness’ by many and rape survivors are made to believe that they won’t be considered a ‘real man’. Homophobic attitude also reduces the susceptibility of men being raped and it is believed that only homosexual men are raped. Due to these myths associated with male rape a stigma surrounds sexual assault against men which is considered a taboo and that’s why male rape cases often go unreported.
503Apeksha Duhan, Male Sexual Abuse and India, (Aug 9,2018), https://www.mapsofindia.com/my-india/ imo/male-sexual-abuse-and-india Page | 307 It is also a common belief that men are always open to sexual advances. Many male victims, either because of physiological effects of anal rape or direct stimulation by their assailants, have an erection, ejaculation, or both during the assault. This is incorrectly understood by assailant, victim, the justice system, and the medical community as signifying consent by the victim.504 Victims might experience an arousal or ejaculation or both during rape which is unwanted. It often leaves the victim confused and disgusted. This becomes a major reason of their embarrassment and they try to avoid talking about it hence keeping quiet about the whole situation. The sexual response by the victim is often used against them by the perpetrators who use it as a trick to show implied consent of the victim and demonstrate that the whole process gave them as much pleasure. And on this basis many victims are denied justice. But studies have found that this sexual response can be due to stress and often people experience erection during panic attacks. Also the teenagers are very sensitive to touch. Hence, such kind of sexual response is unwanted and doesn’t mean that the victim enjoyed the process.
Gender Neutral Laws
With changing perspectives, initiatives are being taken to provide justice to victims of sexual assault. Demand for gender neutral laws is taking pace.
Gender neutral laws are those laws that govern the society without making any distinction with respect to gender. Arvind Narrain had discussed three dimensions of gender neutrality- neutrality with respect to victim, neutrality with respect to perpetrators and neutrality during custodial, communal war situations.
The laws related to sexual assault in India are gender specific as they recognize only women as victims. But gender neutral laws recognize that offences such as sexual assault are not limited to just one section of society i.e. women but also take into consideration the plight of transgender and male victims. Their interest has been ignored for a long time. Gender neutral laws with respect to perpetrators talk about female- on- male and female- on- female sexual violence i.e. considering women as offenders. During war, communal conflict or custodial situations the gender of the victim or perpetrator becomes irrelevant as the other forms of identity play an
504Clayton M. Bullock & Mace Beckson, Male Victims of Sexual Assault: Phenomenology, Psychology, Physiology, J AM ACAD PSYCHIATRY LAW 39:197–205, 2011 Page | 308 active role. Sexual violence against both men and women during war times and communal conflicts is a common sight. Rape in prisons is also prevalent where there is a bid for the new prisoner.
Opposition towards Gender Neutral Laws
Gender neutral laws are strongly opposed on the basis that they would undermine the interests of women. Flavia Agnes says, “A gender-neutral rape law would open up avenues for inflicting even greater trauma and humiliation to an already marginalized section and hence defeat the very purpose of reform.”505 If these laws are made gender neutral then there are possibilities of fake counter- complaints on women who complain of sexual harassment, which would make it difficult to provide them justice. The laws should be made gender neutral only if both the sexes are on the same footing. The conditions of men and women in India are different where men socially are at a privileged situation and women are a disadvantaged section and hence are more prone to sexual harassment. Crimes such as marital rape, dowry deaths etc are prevalent making it necessary to have provisions for protection of women. Also rape or sexual assault by women is far from reality. Not a single case has come forward blaming a woman for sexual assault. And women are not strong enough to force a man. Introducing such a reform would lead to more chaos and make justice a far cry for rape victims.Therefore, special laws could be passed for the protection of different sections of society rather than altering the already existing laws meant for protection of women.
Arguments in favour of Gender Neutral Laws
It needs to be understood that the gender neutral laws are not against the interests of women; rather gender neutral laws are against the injustice done to male rape survivors who are not provided justice through gender specific laws. It’s a means to provide justice to victims of sexual assault irrespective of gender. It doesn’t ignore the fact that rape on women is more prevalent in our country but it along with considers male rape. Also the Indian Constitution guarantees some fundamental rights to all in which Articles 14 and 15 of the Indian Constitution refer to “Equality before law”506and “Prohibition of discrimination on grounds of religion, race, caste, sex or place
505Flavia Agnes, Law, Ideology and Female Sexuality: Gender Neutrality in Rape Law, Vol. 37 No. 9 ECONOMIC AND POLITICAL WEEKLY 844, (2002) 506Constitution of India, 1950, Art.14 Page | 309 of birth”507 respectively hence guaranteeing all equal protection of law. Ignoring male sexual assault and not making laws against it violates the fundamental rights of men. Though Article 15(3) says, “Nothing in this article shall prevent the State from making any special provision for women and children”508 therefore allowing positive discrimination for the welfare of women and children, but it doesn’t allow violating the rights of other sections. Protection from sexual assault is not any special provision rather is a basic right that should be available to all without any discrimination, just as protection from robbery and murder is provided to all irrespective of any religion, race, caste, sex or place of birth. Along with Art 14 & 15 sexual harassment also violates a person’s Fundamental Right guaranteed under Art.21 i.e. Right to Life. Right to Life means “the right to live with human dignity” and thus includes all those aspects that make a life meaningful and worth living. Sexual assault against anyone is violative of this right. Right to life is guaranteed to both men and women. Hence, not protecting other genders against rape and sexual assault violates this Fundamental Right guaranteed by Constitution of India.
Even if it is argued that Art.21 doesn’t extent to protect other genders from sexual assault till now, it can be taken into consideration that the Supreme Court has taken the view that in order to treat a right as a Fundamental Right, it is not necessary that it should be expressly stated as a Fundamental Right. The Supreme Court in order to expand the ambit of Fundamental Rights interprets them along with international charters on Human rights like it did inVishaka v. State of Rajasthan.509The Court has also implied the right of privacy from Art.21 by interpreting it in conformity with Art.12 of the Universal Declaration of Human Rights, 1948. Similarly, Universal Declaration of Human Rights, 1948 argues under Art.3, “Everyone has the right to life, liberty and security of person”510 and under Art.5, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”511 opposing sexual assault against anyone without any discrimination on the basis of gender. Hence, this can be included under Art.21.
Making sexual assault laws gender neutral would further help to reduce the stigma that surrounds male sexual assault by sensitizing people towards an issue that is not talked about at all and those
507Constitution of India, 1950, Art.15 508Constitution of India, 1950, Art.15, Cl. 3 509(1997) 6 SCC 241 : 1997 SCC (Cri) 932 510Universal Declaration of Human Rights, 1948, Art.3 511Universal Declaration of Human Rights, 1948, Art.5 Page | 310 who have suffered would start raising their voice in anticipation of getting justice.
Initiatives towards Gender Neutrality
Initiatives around the world are being taken to make laws gender neutral. In Sweden, first Male Rape Centre was established. Gender neutral laws have been adopted in number of countries including Canada, Australia, England Wales, Ireland, Finland and majority states of USA. The UN Women also recognizes sexual harassment as irrespective of gender. Discrimination, sexual harassment and harassment are defined in SG's bulletin as “Sexual harassment is any unwelcome sexual advance, request for sexual favour, verbal or physical conduct or gesture of a sexual nature, or any other behaviour of a sexual nature that might reasonably be expected or be perceived to cause offence or humiliation to another, when such conduct interferes with work, is made a condition of employment or creates an intimidating, hostile or offensive work environment. While typically involving a pattern of behaviour, it can take the form of a single incident. Sexual harassment may occur between persons of the opposite or same sex. Both malesand females can be either the victims or the offenders.”512 Hence, UN argues complete gender neutrality and provides protection from sexual harassment to both men and women.
In India, in response to a petition filed by Insia Dariwala, Maneka Gandhi, India’s Minister of Women & Child Development, announced the creation of a first-of-its-kind study on male survivors of child sexual abuse, led by Dariwala. But the struggle for gender neutral laws in India doesn’t end here.
Recently, a PIL was filed in Supreme Court to make laws gender neutral which was rejected on the grounds that it came in Parliament’s domain. The bench also told petitioner, “These are affirmative provisions for the protection of women and in their favour. We cannot agree withyour argument. This appears to us like an imaginative petition. Actually these are valid
513 classification.”
512United Nations, Secretariat, Secretary-General’s bulletin, Prohibition of discrimination, harassment, including sexual harassment, and abuse of authority, ST/SGB/2008/5, 11 February 2008 513Monalisa Das, Should rape laws in India be gender neutral? Experts weigh in, THE NEWS MINUTE, Feb 03, 2018,https://www.thenewsminute.com/article/should-rape-laws-india-be-gender-neutral-experts- weigh-75834 Page | 311 The Centre in reply by the Ministry of Home Affairs, while responding to a petition that made a demand for making rape laws gender neutral said, “Further, globally offences like sexual harassment along with other offences like voyeurism or stalking are predominantly perpetrated by a man on a woman. These sections have been enacted to protect and keep a check on the
514 rising levels of sexual offences against women in India.”
The Justice Verma Committee constituted after Delhi Gang Rape suggested making rape laws in India gender neutral following which Criminal Law (Amendment) Ordinance, 2013 was passed that was based on its recommendations making the offence of sexual harassment, voyeurism, stalking, and sexual assault gender neutral just like acid attacks, but it invited protests from women’s groups and lasted only for 58 days and was repealed and replaced by the Criminal Law (Amendment) Act, 2013 which made these laws gender specific.
Conclusion
Crime has no gender and laws should also not. Everyone is equal before the law and has the right to be protected equally against any crime. Sexual assault has similar impact on both men and women. By not providing proper legislation for the protection of men from sexual assault rape against men is being encouraged and their agony is being neglected. Hence, according to me rather than sticking to the extremities of believing in the traditional concept that only women are raped and only by men on one hand and on the other hand making the laws completely gender neutral following what other nations are doing; in India keeping the societal conditions in mind the law should be made gender neutral only with respect to the victim and let the law be gender specific regarding the perpetrator as till now no case has come forward blaming a woman of sexual assault. This way protection would be provided to all the genders against sexual assault and it simultaneously would help to avoid the chaos and confusion that may arise as a result of counter- claims against the women victims. Hence, it would protect the Fundamental Rights of all, and would also not harm the interests of the vulnerable section of society for whose protection all these laws are made gender specific. As coming forward to speak about surviving sexual assault or abuse can be difficult, so when men choose to come forward, it's important that they are believed and supported by the people around them. Raising their voice and telling their
514Richa Banka, Rape laws can’t be gender-neutral: Centre tells Delhi High Court, HINDUSTAN TIMES, Oct 24, 2018 Page | 312 story to loved ones and seeking professional help from a therapist requires trust, compassion, and understanding. A resounding message that anyone who has been sexually assaulted needs to hear, is that they are not alone. And this is possible only when the laws along with the people in a society break the stereotypes and start accepting that Men Can Be Raped Too!
-KANIKA CHUGH
CONSTITUTION - AN ETERNAL LIVING ORGANISM FOR INDIAN WOMEN
AUTHOR: ANSHIKA JUNEJA
ABSTRACT The Constitution is not an ephemeral legal document embodying a set of legal rules for passing the hour. It sets out principles for an expanding future and is intended to endure for ages to come and consequently to be adapted to the various crises of human affairs. Constitution of a country plays a very pivotal role of determining the commitments and orientations of the state. Gender equality which is one of the most vital aim of the state, was even recognized as the basic principle of the constitution.515 Dogmatism recurrently is associated with women. Women from ages have been a subject of bigotry, in the sense of religion. Women are always expected to maintain unrealistic standards. Counting of rituals, customs and religious practices ostensible in the country will not end wherein a woman is denied her basic, fundamental and inalienable rights. Triple Talaq, Nikah Halala, discrimination on the basis of menstruation which includes not only the denial to access public places (temples, more specifically) but also denial of equal opportunities when it comes at becoming priests in the temples. Plethora of new issues which will include questioning of Kanyadan, the concept of matrimonial home (Sasural) peculiar to women will come very soon in limelight. This paper will take into account the different
515 Gita Hariharan v. Reserve Bank of India AIR 1999 SC 1149 Page | 313 constitutional provisions for the protection of women and will throw light on how it has surpassed the tests of time. How the courts have used the rays of these provisions to meet the requirements of women from time to time and how it can prove to be a useful instrument in future for protecting women from becoming a subject of bigotry along with the public opinion.
INTRODUCTION
The recognition of the inherent dignity and of equal and inalienable rights of all the members of
516 the human family is the foundation of freedom, justice and peace in the world. Dignity and inalienable rights of the members of human family are revered by Grundnorm of the countries which is often ostensible by their Constitutions. Constitution is not a mere political document. It is essentially a social document. It is based on a social philosophy and every social philosophy like every religion has two main features, namely, basic and circumstantial. The former remains constant but the latter is subject to changes. The core of a religion always remains constant but the practices associated with it may change. Likewise, a Constitution like ours contains certain features which are so essential that they cannot be changed or destroyed.
Essential features of our constitution which are not subject to changes are imbedded in the basic structure theory which provides certain basic principles of our constitution. One such basic principle of our constitution is gender equality.517Constitution cherishes the idea of gender equality by provisions which are not less than safeguards for the protection of women. Instances of different cases, gives a testimony to the fact that how the constitutional provisions have worked in promoting gender equality and creating a better environment for women to live in.
INDIAN CONSTITUTION AND WOMEN
Half of the Indian population is women. Women have always been discriminated against and have suffered and are suffering discrimination in silence. Self-sacrifice and self-denial are their nobility and fortitude and yet they have been subjected to all inequalities, indignities and discriminations. The fundamental law of the country heeded it and provided certain provisions especially in the direction of women protection. Let’s peep into those provisions;
516 Preamble of Universal Declaration of Human Rights
517 Gita Hariharan v. Reserve Bank of India AIR 1999 SC 1149 Page | 314 Preamble
Preamble of our constitution is often equated with a window through which we can peep into the intentions of the constitution makers. It spells out the central thrust and basic philosophy which is contained in the body of the Indian Constitution. It contains various goals of our constitution including “the equality of status and opportunity” to all the citizens. This goal has been incorporated to give equal rights to women not only in terms of status but also in terms of opportunities. This expression’s inclusion in the preamble affirms the presence of basic goal of gender equality and is like a brooding omnipresence.
Fundamental Rights
Fundamental means basic rights which fall in the category of inalienable rights and are to be associated with “entrenchment”. “Fundamental Rights are intended not only to protect individual’s rights but they are based on high public policy. Liberty of the individual and the protection of his or her fundamental rights are the very essence of the democratic life adopted by the constitution and it is the privilege and the duty of the Court to uphold those rights”.
Fundamental Rights are the meat and potatoes of a democracy. They are essential for the overall development of an individual. They are not gifts from the state to citizens. Part third does not confer fundamental rights but confirm their existence and give them protection. Individuals possess fundamental rights for the simple reason that they belong to human race. Out of the bunch of all the rights certain rights specifically aim at the protection of women. They are;
Article 15(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex and place of birth or any of them. • Article 15(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to— Access to shops, public restaurants, hotels and places of public entertainment; or The use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. Article 15 (3) Nothing in this article shall prevent the State from making any special provision for women and children.
Page | 315 Article 16(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
We have reached moon and now we are planning to convert moon into a vacation spot but still our thinking is surrounded by the stereotype thoughts which are so overwhelming that it doesn’t allow the modern thoughts of equality to come into picture. This thought pervasively is prevalent in our society and is apparently ostensible when it comes to the discrimination inflicted against women on the basis of a natural process of menstruation. Menstruation is a process peculiar to women and is one of the feature to which only women are subject to. Haplessly instead of providing respect and esteem to that process society curses women on the basis of that system. Custom or usages which under Article 13 (3) (a) of the Constitution is considered as a law violates the fundamental rights of women by discriminating women on the basis of menstruation and stringently opposes women official priests in the temples and mosques. Public employment is a facet of right to equality envisaged under Article 16 of the Constitution of India. The recruitment rules are to be framed with a view to give equal opportunity to all the citizens of India entitled for being considered for recruitment in the vacant posts.518 Equality in public employment is a being feature of our constitution. But because of the fear of the societal norms, the custom and usages of the society along with the rituals and cultural practices the discrimination in employing women priests still persists. Supreme Court till date has not confronted any case on the persistent discrimination in priest’s employment in temples and mosques. However, cases have been there for allowing women to enter their place of religion. The Religion with which they are brought up and are nurtured doesn’t allow them to practice and revere it in some of her bad days. The irony that is nurtured by the society is to impose a rule, however unjustified, and proffer explanation or justification to substantiate the substratum of the said rule. Mankind, since time immemorial, has been searching for explanation or justification to substantiate a point of view that hurts humanity. In the case of employment of a priest or the one appointed to perform religious rites and ceremonies peculiar to the temple the honorable Supreme Court held that -
518Principal Mehar Chand Polytechnic v. Anu Lamba AIR 2006 SC 3074 Page | 316 “As long as anyone is well versed and properly trained and qualified to perform the pooja in a manner conductive and appropriate to worship of the particular deity is appointed as a Santhikaran dehors his pedigree based on caste, no valid or legally justifiable grievance can be
519 made in court”.
This part of the judgment makes it crystal clear that Supreme Court more precisely the interpreter of the constitution does not support the appointment of a priest on the basis of caste and similarly on the basis of religion and sex. Every coin has two sides and it will be extremely unfair if only one side of the coin is taken into consideration so, let’s peep into the other respects wherein the presence of these fundamental rights assisted in the removal of discriminations which existed from time immemorial. In Air India Regulation v. Nargesh Mirza520 Air India Regulations relating to retirement and pregnancy bar on the services of Air hostesses were declared as unconstitutional on the grounds that the conditions laid down therein were entirely unreasonable and arbitrary. The impugned Regulation 46 provided that an Air hostess would retire from the service of a corporation upon attaining the age of 35 years or on marriage, if it took place within 4 years of service or on her first pregnancy, whichever occurred earlier. Under Rule 47, the Managing Director was vested with absolute discretion to extend the age of retirement prescribed at 45 years. Both these regulations were struck down as violative of Article 14 of the constitution which prohibits unreasonableness and arbitrariness. And therefore Supreme succeeded in the direction of promoting gender justice. Article 23 of the constitution which specifically prohibits traffic in human beings also includes “Devdasi System”. A system which from time immemorial was prevalent in India like the Trokosi System of Ghana was demolished up to a great extent by this protection. Matrimonial home or Sasuralwhich is meant for women only is definitely going to be a hot topic in future. This from time memorial is abridging her fundamental and inalienable rights especially her right to live dignity. The right to set up matrimonial home by the virtue of our culture and traditions is given to husbands. But fortunately the High Court of Delhi held that the right to set up matrimonial home to husband alone at all times in preference to the wife is based
519 N. Adithayan v. Travancore Devasworm Board AIR 2002 SC 123,124 520 AIR 1981 SC 1829 Page | 317 on custom, this reflected the conditions of the age in which the custom was practiced. The court further held that the conditions have greatly altered and the custom applicable in the past, does not fit in the present situation. There are cases where women are better placed and a wife may be financially well off then her husband. In such a case, the rights to choose matrimonial home belongs to the wife.521 This part of the judgment evidenced that how the courts are moving on the progressive approach path. Dignity of a woman has started taking a different position and is moving towards a high pedestal. Article 21 No person shall be deprived of his life or personal liberty except according to procedure established by law. In an organized society, right to live as a human being is not ensured by meeting only the animal needs of man. It is secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth. All human beings are designed to achieve this object.522 Societal norms which ask women to maintain some decency levels exist as the greatest hurdle in the overall growth of women. Decency or Morality of the society is something which is very vague and unambiguous. It varies from society to society and time to time depending on the circumstances prevailing in the contemporary society. The ordinary dictionary meaning of ‘decency’ indicates that the action must be in conformity with the current standards of behavior or propriety. Supreme Court made an attempt to define Inadequacy and came up with the following definition;
“Inadequacy is not defined to sexual inadequacy: indeed it is difficult to find any limit short of saying that it includes anything which an ordinary decent man or woman would find to be
523 shocking, disgusting and revolting.”
Assessment of the above definition leads to this conclusion that even the honorable Supreme Court finds it difficult to give decency an exact definition but lamentably society thinks that it is capable of and curses women of not having decency in their lives. The testimony to this behavior of society is ostensible whenever Rape of women happens.
521Swaraj Garg v. K.M. Garg AIR 1978 Delhi HC 296 522 Chameli Singh v. State of Uttar Pradesh AIR 1996 SC1053 523 Dr. Ramesh Yeshwant Prabhoo v. Prabhokar Kashinath Kunte AIR 1996 SC 130 Page | 318 In the theatre of life different actors play their parts. Some actors play vital roles and leave impact on the majority. The echoes of which can be heard from time immemorial. Now question of dilemma is what type of role they play and what type of impact their roles have. Kanyadan, a practice and a ritual widely observed and practiced in India is a paragon of the fact that how the members of the Indian society constructed enduring platform for the degradation of right to live with dignity of women. Kanyadan literally means donation of a girl. Donation in generic sense is something which can happen for a non-living thing but the actors of the theatre have made a very vital space for this special type of donation, that people revere this practice as a meat and potato of the social institution of marriage. But fortunately Andhra Pradesh High Court held that Kanyadan is an essential Ceremony. It’s absence however may not invalidate a marriage.524 But still it is discernible in the society and marriage ceremonies.
Directive Principles of State Policy Instructions and guidelines which assist the government in formulating policies for the country are enshrined in Part IV of the Indian Constitution. There is no disharmony between the Directives and Fundamental Rights because they supplement each other in aiming at the same goal of bringing about a social revolution and the establishment of a welfare State, which is envisaged in the Preamble.
Different schemes and incentives have been taken by the government to improve the status of women and some of them are;
(a) In 1976, National Plan of Action (1976) was enforced providing guidelines based on
United Nations ‘World Plan of Action for women’ with special attention to areas of health, family planning, nutrition, education, employment. (b) The reservations provided to women through the 73rd and 74th Constitutional
Amendment Acts of 1992 in local bodies has enabled them to be brought to the centre-
stage in the nation’s efforts to strengthen democratic institutions. But providing
reservation is not a solution to the degenerating status of women. Because providing reservation is similar to treating women as the vulnerable section of the society.
524Ramlal Aggarwal v. Shantadevi AIR 1999 AP 251 Page | 319 (c) Rajiv Gandhi Scheme for Empowerment of Adolescent Girls (RGSEAG)
–‘SABLACentrally-sponsored scheme was approved by the Government to meet
nutritional needs and to provide vocational training for girls above 16 years of age for their economic empowerment. (d) Rashtriya Mahila Kosh – (National Credit Fund for Women Mahila Kosh (National
Credit Fund for Women) was set up in 1993 with a corpus of Rs. 31 crores, against the
backdrop of socio-economic constraints faced by poor women to access micro – credit
from the formal financial system in the country, especially those in the rural and in unorganized sectors. (e) Ujjwala Scheme is comprehensive scheme that was launched in 2007 for prevention of
trafficking and rescue, rehabilitation and reintegration of victims of trafficking for commercial sexual exploitation. (f) SWADHAR (A Scheme for Women in Difficult Circumstances) aims at the protection
of women, especially in a difficult circumstance like widows, destitute and deserted
women, women ex-prisoners, victims of sexual abuse and crimes, including those
trafficked and rescued from brothels, migrant or refugee women who have been rendered homeless due to natural calamities.
PUBLIC OPINION One of the vital pillars of Indian democracy is the public opinion. Without the public opinion on a particular topic discussion on that particular topic will go in vain. So, the author undertook the survey via direct personal investigation to analyze the authenticity of the topic concerned. A variety of questions were asked from a group of thirty people belonging to different professions holding different viewpoints with their own perspectives. Questions included the following; 1. Are the Constitutional Provisions sufficient for the upliftment of Indian women? 2. Should Menstruation be a basis for discrimination? 3. Is the concept of Sasural or Matrimonial home a discriminatory one? 4. In your opinion is the religious practice of kanyadaan an example of treating women as a physical object meant to be donated? 5. Do you think masculinity is the root cause of all the women related violence?
Page | 320
Analysis A group of different people from different professions confronted the questions in the direct personal investigation with their own perspectives and viewpoints reflecting the diversity in the public opinion. The responses to the first question reflect patently that the public opinion does not consider the constitutional provisions sufficient for the protection and upliftment of women. 86.2% people supported what the honourable Supreme Court supported and upheld in the Sabarimala judgment and said that menstrual discrimination should not exist in any way. The concepts which till date have not been into the debates and discussions also gathered substance in the public opinion and 75.9% of the people supported the fact that Sasural or matrimonial home is a discriminatory concept. 58.6% of the people said that Kanyadan is an example of treating women as a physical object meant to be donated. This plausibly corresponds to the fact that the people of the twenty first century are moving ahead and are not resting their opinions on the historical importance of these religious traditions.
PARADIGM SHIFT- NEED OF THE HOUR
The society has to undergo a paradigm shift from being the propagator of hegemonic patriarchal notions of demanding more exacting standards of purity and chastity solely from women to be the cultivator of equality where the woman is in no way considered frailer or inferior to man. The law and the society are bestowed with the Herculean task to act as levelers in this regard.And for the same several arenas exist wherein if the society and women themselves will take steps then change in the status of women will not remain a distant dream. First and the foremost in the sequence comes the concept of “Masculinity” which is deeply and pervasively embedded in our society and is nurtured by the society even in twenty first century. The concept of masculinity is about the chauvinism of man. A man is taught ab initio about his valor. This masculinity concept tells them bogusly that their pedestal is higher than women and tears are synonymous to women. If change will be brought to the way the upbringing of boys is done and from the very beginning of their life they would be taught about the repercussions of the heinous crimes against women. Then definitely evils against women will get vanish. Secondly the participation of women has to be improved especially in political fronts. For this the instance of Ghana can be taken into consideration. Ghana has established Young
Page | 321 Women Clubs, Gender Centre Training and Coalitions of Women in Governance Groups which educate women on leadership, tells them how to be assertive, boost their self esteem, and make decisions and provides them the skills to negotiate with their male counterparts. United Nations Secretary General Antonio Guterres also commended Ghana for its leadership programs for women. Such programs can be introduced in India for the enrichment of the status of women in political spheres. The need of the hour is Gap Filling in the areas of law wherein laws are not present. One such area is International Adoption, when foreign couples come for adoption in India then they confront the absence of regulation regime on how the adoption is to be undertaken which ultimately paves way for the exploitation of women, law for the regulation of number of marriages a male is allowed to engage in irrespective of his religion and law prohibiting the practice of Nikah Halala, abolition of the custom and thinking of treating women as a reproducing machine by introducing the policy of two child per woman and stringent laws on the prohibition of bars demonstrating women dancers as it is the most ostensible form in which the infringement of right to dignity is taking place. The need of the hour is also to increase maternity benefits. This is not going to create a special provision for women but is going to provide women with the inherent right which is embedded in her.
CONCLUSION Constitution makers adopted a far-sighted approach and included all meats and potatoes for upholding the system of democracy and indwelling the traditions for the construction of democracy by the inclusion of Fundamental rights especially. This beauty of our constitution can be used to untangle the obstacles in the healthy development of the citizens whether male or female who are the inhabitants in a democracy. Alluring attributes imbedded in our constitutional provisions aiming at the protection of women will help us in future to confront the vicissitudes of time, the testimony to which is provided with a number of cases cited above.
Justice K.S. Puttaswamy and another vs Union of India and
Page | 322 others writ petition (civil) Number. 494 of 2012
By: ANUKRITI
The Supreme Court on September 26th, 2018 upheld the validity of India’s biometric project Aadhaar saying it’s benefited the marginalised and poor but sharply ranged in a government push to make it mandatory for various services. It was passed on March 11th, 2016 by Lok Sabha. The decision to introduce Aadhaar bill as a money bill was criticised by the opposition parties.The judgement was given by 4: 1 ratio. The Supreme Court found that the Aadhaar Act, 2016 is constitutionally valid. But it struck down some sections of the Act including section 33(2), 47 and 57. Justice A K Sikri pronounced the judgement that same judgement has been signed by the Chief Justice of India as well as Justice Khanwilkar that effectively means the judgement given by Justice Sikri is the majority view.525 As per section 57 of the Aadhaar Act, this was the critical section. This is the section that allows the private parties and individuals as well to seek Aadhaar from people for authentication, for verification. That section 57 found to be unconstitutional. The Apex Court has said, the private bodies, corporation persons seeking Aadhaar, persons outside the government seeking Aadhaar is struck down. As per as the linkage of Aadhaar with the bank account and telephones are concerns that is again the Apex court has said needs to be struck down that as of right now there is no statutory provision that provides for such linkages and that minus the statute and the statutory sanction. As per as the linkage of Aadhaar with bank cards are concerned. The linkage of Aadhaar for filing of an income tax returns that is section 139 of Income Tax Act has been upheld by the Apex Court. That effectively means that going forward should any person need to file the Income tax returns will need to go ahead and associate their Aadhaar number with the Permanent Account Number card that has been upheld which in fact
526 leads to the broader debate.
In ruling with far reaching consequences the panel of five judges cleared the use of the Aadhaar for welfare schemes saying it empowered poor and marginalised. Majority of the panel ruled the
525 https://www.sci.gov.in/supremecourt/2012/35071/35071_2012_Judgement_26-Sep-2018.pdf last access on June 25th, 2019 (11:12am) 526 https://www.livemint.com/Companies/cpSHu1fjQ1WvOP8vMi27aL/What-Supreme-Courts-Aadhaar- verdict-means-for-you-10-point.html last access on June 25th, 2019 (01:02pm) Page | 323 program has merits but struck down provisions in the Act that made its use mandatory in applications for services ranging from bank account to mobile telephone connections and school admissions. The court also ruled unconstitutional use of Aadhaar by companies to establish an individual’s identity.
It is necessary to understand the background in which this decision has been given. The process of registration under the Aadhaar started way back and the project was conceived in 2006 government deliberated it with. On it consulted all other people who are concerned with the subject and in 2009 it came out with an executive order by way of a government resolution where by the UA ID was constituted. And under that was a specific provision that this unique number will be utilised only for the services which government of India will be providing. So, the loopholes are there and the provisions of subsidy and financial assistance or other assistance been given by the government is being misused either by the non- existing persons or by the intermediaries they should be should remove and the benefit of the scheme should go to the individuals.527 The challenge was made when in 2013 when it was regulated by an executive order and the main challenge was that the right of privacy is violated because this is being recruited not by an Act of Parliament but by an executive order. Secondly, because the data has been collected by the private agencies there is no provision for data security. And thirdly in case anybody is misusing the data is not utilising the data for the purpose for it has been collected probably there is likelihood that there is no provision that he can be prosecuted. So, to cover all these aspects, Supreme court after discussing all these aspects had come to the conclusion that the benefit for the Act has been passed that objective is when achieve by the provision of the Act and therefore its constitutional validity have been upheld. Only two or three provisions have been touched where the data can be shared by the private agencies and with regard to bank and other financial institution which were not necessarily mandated under the Act to collect Aadhaar data, there said that they cannot collect it. It is only for the purpose of section 9 when benefits are to be drawn by individuals then only the provision of the Act will be applicable and registration of Aadhaar will be compulsory. In addition, the more importantly, the Supreme court had given a
527 https://www.thehindu.com/news/resources/aadhaar-validity-full-text-of-supreme-courts-verdict- delivered-on-september-26-2018/article25049176.ece last access on June 24th, 2019 ( 12:12am) Page | 324 direction now the government must came out with a strong data protection Law also in addition
528 to the safeguards which have been given under this particular Act.
The kind of difficulty which was facing that everybody is missing to provide an Aadhaar data probably that kind of insistence by the private agencies those who under the Act are not authorised to collect this data they will not be allowed that data and there will be clarity in this situation. There are some fundamental issues which have been raised both as in majority opinion and as well as dissenting opinion Justice Chandrachud. The judgement is of 448 pages. There are some issues related. The first goes to the issue of constitutionality of the origins of that bill itself. Secondly, can the court get into the question of judicial review of the certification of the bill as the money bill by the speaker followed by a constitutionality of the Act itself and then there are questions of the safeguards provided in the Act with respect to privacy so on and so forth. And the balance that the court is trying to strike between what it calls to social economic rights of the marginalised part of human dignity.529 And the parting of the minimal of the minimal information needed for extension of benefits or incentives. One of the central question which both the majority and the minorities views have is can a bill which is been disguised as a money bill can you then sit over judicial review of it with respect to the provisions itself as a pending it back to the parliament if you that it does not qualify as a money bill within the meaning of article 110 and there required to be sent back. So, they answer the question to be affirmative with respect to the power of the judiciary to look into this question of the certification of the bill itself. So, both majority and minority views takes the clear position. That the court has the power to look into the decision of the speaker when it comes to whether the bill was rightly certified as a money bill or not. On that particular issue Justice Chandrachud opinion was that none of the provisions are that none of the provisions are completely satisfied because this Act is not entirely about the tax related legislation and therefore it goes much beyond. And therefore it cannot be used as a right to prevent any kind of review by Rajya Sabha which has very limited seats when it comes to money bill. According to him, if this issue to held against the Act in the passing of
528 https://timesofindia.indiatimes.com/india/supreme-court-upholds-validity-of-aadhaar-says-sufficient- security-measures-taken-to-protect-data/articleshow/65960058.cms last access on June 26th, 1029(04:15pm) 529 https://economictimes.indiatimes.com/news/politics-and-nation/whats-valid-and-whats-not- everything-you-need-to-know-about-todays-aadhaar-verdict/articleshow/65961427.cms?from=mdr last access on June 26th, 2019 (10:15pm) Page | 325 the Act where he says the structural due process is violated then there is no need to get into further debate with respect to constitutional provisions itself and that’s why it has to be sent back. Having dealt with a particular issue then goes into the questions of multiple provisions so it raises two things:
If we come to conclusion the bill or act cannot be given as the benefit of a money bill. This writ petition was filed by Justice Puttaswamy in 2012 and from then on the implementation of a particular project have been massive across the board. When the centre questions the constitutionality of the due process apart from issues of privacy could or should they allow the government to proceed with this. It is necessary to uphold the Act to a certain extent as well as its implementation. When Aadhaar was created the idea was Aadhaar would basically be distinct from the national registered citizens for the delivery of benefits. If there was surveillance it supposed to be coming through the NRC and that was clearly discarded by the UPA government that is not something we are looking. The court upheld the basic premise that it is a mechanism that the government can or should be using for delivery of welfare benefits
The one problem is the Aadhaar says private agencies should not be getting into a state created database. But what will be the impact of this on the financial sector where that sector grappling with corruption where there often question arises of identity. For example, in Shell companies the directors or others, they have been readed out simply on the basis of the Aadhaar. There is no
530 other way to identify that person. That entire exercise now actually is open to review.
The Supreme Court has on the second aspect of privacy and restricting the uses of Aadhaar to what the Act provides for which is delivering subsidy the court upheld that. The Supreme Court restricted the use of Aadhaar into the area which is not mandatory but the law like the private companies cannot demand Aadhaar to provide their services. The court said that there is a legitimate valid aim behind the Aadhaar Act to check leakages. The Act was passed by Parliament for delivering subsidies and benefits and that that Supreme Court had upheld. But parting of minimal data for socio- economic benefits can be allowed. The issue of privacy is raised which is caused by the lack of balance between unique ID and citizen. There will still be
530 https://www.indiatoday.in/india/story/aadhaar-supreme-court-verdict-1349523-2018-09-26 last access on June 27th,2019 ( 09:12pm) Page | 326 more to be said on this. Justice AK Sikri said that the authentication records are not to be kept
531 beyond six months.
A five judge constitutional bench of Supreme Court headed by Justice Deepak Mishra held Aadhaar is mandatory for filing Income Tax returns and allotment of Permanent Account Number. Students of CBSE, NEET, UGC do not require Aadhaar number to appear in the examinations. The admission of students in school does not require Aadhaar number. For receiving the Aadhaar benefits such as welfare schemes, government subsidiaries Aadhar number is mandatory. But the Supreme court has made an exception that no child can be denied benefits of any government welfare schemes even if he/she does not have an Aadhaar card.
532 Aadhaar Act serves as much larger interest.
Benefits of Aadhaar outweigh privacy concerns of the general public. Aadhaar is a inclusive regime it accounts make services available to a large number of population specially the bottom of the pyramid. Aadhaar provision allowing for information to be retained for five years is bad. The state can impose reasonable restrictions in exercise of rights of the Aadhaar benefits. The Apex court said that the public interest shall prevail.533 The question of privacy was the key question that was confronted before the Apex court. In the year 2017, the Apex court held that the right to privacy to be a fundamental right. Court in this case said that Aadhaar indeed is valid as of how that the government benefits that are made available far out way any concerns with respect to minimal data on the back of that Aadhaar is continue to be constitutionally valid. The Aadhaar is constitutionally valid and constitutionally legal qua visa vi government services and benefits with respect to other entities, private entities, banks, telephone companies seeking Aadhaar is just not enable or constitutional as held by the Apex court.
531 https://www.livelaw.in/aadhaar-read-the-summary-of-majority-41-judgment/ last access on June 30th, 2019 (05:18pm) 532 https://www.bloombergquint.com/aadhaar/aadhaar-a-quick-summary-of-the-supreme-court-majority- order last access on June 29th,2019 (10:14pm) 533http://www.mondaq.com/india/x/744522/Data+Protection+Privacy/ The+Supreme+Courts+Aadhaar+Judgement+And+The+Right+To+Privacy last access on June 29th, 2019( 06:05pm) Page | 327
INTERNATIONAL LAW GOVERNING RIVERS AND TRANSBOUNDARY USAGE
By. Siddhant Nanodkar
The most traditional theories relating to International river law have been territorial sovereignty, territorial integrity and prior use. Sovereignty and integrity are based on the principle of respecting one’s neighbours’ territorial border. Prior use is based on the idea that first in time is first in right. However, with time, there was a need to develop these principles as they focused mainly on the effect of the use of the river in one state without considering the potential discomfort and harm to the other riparians. Riparians are those states that share a particular water body across their borders or are adjacent to the said water body. E.g. India and Bangladesh are riparians with reference to the Ganga River.
With time, the interdependency and the interaction of states increased, which forced International river law to adapt to growing conflicts. This gave rise to the use of the principle of ‘no substantial harm’ and other supplementary principles. This was widely accepted as these principles took into account the potential harm to the co-riparians as well as non-riparian water users.
The prolonged use of these principles led to the emergence of the principle of equitable utilisation. Equitable utilisation evaluates all relevant facts when determining the validity and legality of a particular use. Therefore, as all factors are evaluated, a lesser number of disputes arise and if and when they do, they can be resolved more effectively.
This article discusses the history of the law governing international river, guiding principles of the said law and Environmental Impact Assessment (EIA) and State Co-operation in transboundary usage of rivers.
HISTORICAL DEVELOPMENT OF THE LAW
1. Absolute State Sovereignty
Page | 328 Historically, the absolute state sovereignty principle provided for the unrestricted and unchecked use of natural resources within a sovereign state.534 E.g. if a State X is the origin point of a river that flows into State Y, State X may lawfully deplete a river’s flow within its territory. Any reduction in the flow of the river into State Y is irrelevant in determining the legality of State X’s action. Thus if acts performed by a State, on a river within its sovereign territory injured a neighbouring state, it is legal under the principle of absolute state sovereignty.
This principle also came to be known as the Harmon Doctrine, when in 1895, United States Attorney General Harmon, applied this concept of absolute state sovereignty to the dispute between the United States and Mexico concerning the use of the river Rio Grande535.
The Harmon doctrine has been supported by many international authors and publicists536 and can be found in the declarations of several States. India537 and Austria have recognised the Harmon doctrine in their disputes with lower riparian States538. However, in spite of adherence to this, Bourne has also noted that like the United States, both countries have settled the waters disputes with their neighbours by treaties based on other principles but expressly providing that the treaty provisions did not establish any general principle of law or precedent539.
However, in spite of this support for the Harmon Doctrine, it has been very rightly rejected universally 540. Bourne has stated that the doctrine is intolerable and radically unsound, a vast number of water treaties have clearly opposed it and a large number of international and federal judicial tribunals have rejected it541.
534 H. BRIGGS, THE LAW OF NATIONS 274 (2nd ed. 1952); L. OPPENHEIM, INTERNATIONAL LAW, 464- 65 (8th ed. 1955). 535 Treaty Between the United States and Mexico, 34 Stat. 2953, T.S. No. 455, 9 Bevans 924 (1906). 536 J. LAMMERS, POLLUTION OF INTERNATIONAL WATERCOURSES 349 (1984), p. 531-533; F. BERBER, RIVERS IN INTERNATIONAL LAW,15-19 (1959). 537 J.S. Bains, The Diversion of International Rivers, 1 I. J.I.L. 38 (1960-61). 538 C. S. Bourne, The Right to Utilize the Waters of International River, 3 CAN. Y.B. INT’L L. 187, 205 (1965). 539 Id. 540 J. O. Moermond III et. al., A Survey of the International Law of Rivers, 16 DENV. J. INT’L. & POL’Y 139, 141 (1987-88). 541 Bourne, supra note 5, at 209. Page | 329 J Lipper has suggested that the doctrine is an empty concept and not a principle of law 542. Another jurist, J. G. Lammers rubbishes the doctrine for being highly egoistic and also from a legal point of view, self- contradictory. He says, “it is clear that the unrestricted disposal by State A of the waters of an international watercourse flowing from that State into State B based on the idea of State A's absolute territorial sovereignty is incompatible with the unrestricted disposal of those waters to which State B would be likewise entitled on the basis of its absolute territorial sovereignty over the natural resources which nature would ordinarily bring into its territory . . . . unlimited disposal by State A of its territory will make unlimited disposal by State B of its territory impossible and vice versa. Thus, if not already untenable because of the social and economic injustice to which the application of the principle of absolute territorial sovereignty would lead, such application would already seem impossible because of the legal contradiction inherent in the principle itself543.
2. Absolute Territorial Integrity
The antipode of the Harmon doctrine is the principle of absolute territorial integrity. Under this principle, the exercise of territorial sovereignty is permitted only in so far as it does not cause damage or injury in the territory of other states, as such an exercise would lead to an infringement of the territorial sovereignty of those other states544.
E.g. State X in the above-mentioned example will be prohibited from using the natural resources within its territory in such a way so as to not cause any harm or be detrimental to State Y. A detrimental use is any diversion of water that increases or diminishes a river's flow545.
Through the Preamble of its 1979 Athens Resolution546, the Institute of International Law and some international jurists547 accept and adhere to the principle of territorial integrity. In spite of this, state practice and opinio juris did not support this principle.
3. Principle of Prior Use
542 J. Lipper, Equitable Utilization, in, THE LAW OF INTERNATIONAL DRAINAGE BASINS 22-23 (Garretson, Hayton, Olmstead ed. 1967). 543 Lammers, supra note 3 at 557-558 544 Id. at 562. 545 Berber, supra note 3, at 20-22. 546 Institut de Droit International, The Pollution of Rivers and Lakes and International Law Athens, Art. 2, 58 (2) IIL YB. 196 (1979). 547 Berber, supra note 3, at 19-22. Page | 330 This principle basically states that the use which was prior in time will be protected. No other considerations or factors will be relevant under this principle. This principle states that the State which first makes use a certain quantity of a river’s water has a right to the continued use of that quantity of the river’s water, irrespective of any other State using the same river. As an obvious consequence, adherence to this principle led to the unjust distribution of resources, similar to the principles of territorial sovereignty and territorial integrity.
Thus the jurist that rejected the abovementioned two principles also rejected the prior use principle. Further, the principle also did not find any support in the international community.
Therefore, though these principles were traditionally used to distribute natural resources, the obvious drawbacks arising, led to the express need for a change in these principles and the need to adapt them according to the existing circumstances. This led to the rise of the modern principles of international law governing rivers.
MODERN PRINCIPLES OF THE LAW
1. No Substantial Harm A. Principle of Good Neighbourliness
The principle of good neighbourliness states that a state is obliged to abstain from conduct that causes physical harm to a neighbour state. To help neighbouring states to co-exist peacefully, this principle also states that a State also has a duty to tolerate, to a certain extent, harmful effects caused by activities not in themselves unlawful, undertaken in neighbouring states. However, a State must not, under the garb of this principle cause substantial harm to its neighbour.
The United Nations also recognizes and fosters mutual respect among its members, particularly those which are neighbours. To this end, the U.N. Charter embodies the general principle of good- neighbourliness, due account being given to the interests and well-being of the rest of the world in social, economic, and commercial matters548. This is precisely the objective of international economic cooperation under Chapter IX of the U.N. Charter549.
B. Principle of sic utere tuo ut alienum non laedas
548 UNITED NATIONS CHARTER, 1945, 892 U.N.T.S. 119 , Art. 74. [hereinafter as UN Charter] 549 Id. Art 55. Page | 331 The principle of sic utere tuo ut alienum non laedas translates to; ‘use your own so as to not injure another’. This obligation requires a state not to use its territory and resources to the detriment of another state550. It can be considered to be an extension of the ‘Good Neighbourliness Principle’. Most publicists agree that for any damage to become unlawful under this principle, it should be substantial in nature551. This principle is an inherent part of the absolute sovereignty and absolute integrity principles. The 1972 Stockholm Conference552 played an integral role in shaping the environmental policies thereafter and is quite rightly called the birthplace of the concept of sustainable development. The declaration through Principle 21553 stated that states have a right to exploit their own resources in accordance with their own policies. However, the principle further goes on to state that States also have a responsibility to ensure that such activities within their jurisdiction do not cause damage to the environment of other States or areas beyond their natural jurisdiction. In furtherance to the Stockholm Declaration, the Helsinki Rules of the International Law Association554, The Article on Prevention of Transboundary Harm555, many eminent commentators556, International Arbitration Tribunals557 and the International Court of Justice558, have used the principle of sic utere as a basis of liability of a state.
C. Principle of Restricted Territorial Sovereignty and Integrity
550 Shawkat Alam, An Examination of the International Environmental Law Governing the Proposed Indian River-Linking Project and an Appraisal of Its Ecological and Socio-Economic Implications for Lower Riparian Countries, 19 GEO. INT'L ENVTL. L. REV. 209, 218 (2006-2007). 551 Lammers, supra note 3, at 571. 552 United Nations Conference on the Human Environment, June 5-16, 1972, Stockholm Declaration on the Human Environment, U.N. Doc. A/CONF.48/14/Rev.1 (1973) [hereinafter as Stockholm Declaration]. 553 Id. Prin. 21 554 Int'l Law Ass'n, Helsinki Rules on the Uses of the Waters of International Rivers and Comments, Report of the Fifty-Second Conference 484, Comment Art. X (1966). [Hereinafter as Helsinki Rules] 555 Articles on Preventing Transboundary Harm from Hazardous Activities, Art. 2, U.N. GAOR, 53rd Sess., Supp. No. 10, U.N. Doc. A/56/10 (2001). [hereinafter as Articles on Prevention of Transboundary Harm] 556 E.g., Oppenheim, supra note 1; B. CHENG, GENERAL PRINCIPLES OF LAW AS APPLIED BY INTERNATIONAL COURTS AND TRIBUNALS 121 (1953). 557 See Trail Smelter Arbitration (U.S. v. Can.), 3 R.I.A.A. 1905 (1938 & 1941); see also Lake Lanoux Arbitration (Fr. v. Sp.), 1957 12 R.I.A.A. 281 (1957) [hereinafter as Lake Lanoux Arbitration], see also MOX Plant Case (Ir. v. U.K.) 126 I.L.R. 310 (2003). 558 Corfu Channel Case (U.K. v. Alb.), Merits, 1949 ICJ 4, at p. 23 (9 April 1949) [hereinafter as Corfu Channel Case]; Case Concerning the Gabčikovo-Nagymaros Project (Hung./Slov.), 1997 I.C.J. 7 (25 September 1997). [hereinafter as Gabcikovo-Nagymaros Project Case] Page | 332 The principle of restricted territorial sovereignty and integrity aims to achieve equilibrium between the principles of absolute sovereignty and absolute integrity. It has been noted by eminent publicist J Brierly, “this practice of states as evidenced in the controversies which have arisen about this matter, seems now to admit that each state concerned has a right to have the river system considered as a whole, and to have its own interests weighted in the balance against those of other states; and that no other state may claim to use the waters in such a way as to cause material injury to the interest of
559 another, or to oppose their use by another state unless this causes material injury to itself.” The principle of restricted territorial sovereignty and integrity is considered by many eminent publicists to be a generally adopted rule of international law governing the rights of co-riparians to international rivers560. This principle has also been reiterated in many international environmental law instruments, inter alia, the 1992 Rio Declaration on Environment and Development561, the 1992 Convention on Biological Diversity (Article 3)562 and the 2002 Johannesburg Earth Summit563.
2. The Principle of Equitable Utilisation
The doctrine of "equitable use" is arguably the most longstanding and settled principle of international law governing international rivers.564 It was applied by the PCIJ in the River Oder case565 and has also been applied in the United States as early as 1907 to resolve an interstate river dispute in Kansas v.
566 Colorado.
Under the principle of equitable utilization, each riparian is entitled, within its territory, to a reasonable and equitable share in the beneficial uses of the waters of a river567. An equitable share is determined by
559 J. BRIERLY, THE LAW OF NATIONS 204-206 (1955). 560 See R. ZACKLIN & L. CAFLISH, THE LEGAL REGIME OF INTERNATIONAL RIVERS AND LAKES 311 (1984); W.L. Griffin, The Use of Waters of International Drainage Basins Under Customary International Law, 53 AM. J. INT'L L. 50, 77-79 (1959). 561 United Nations Conference on Environment and Development, June 3-14, 1992, Rio Declaration on Environment and Development, Princ. 2, U.N. Doc. A/CONF.151/26/Rev.1 (1992). [hereinafter as Rio Declaration] 562 Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S. 79 (1992). [hereinafter as CBD] 563 World Summit on Sustainable Development, Sept. 4, 2002, Declaration on Sustainable Development [hereinafter Earth Summit 2002]. 564 Shawkat Alam, supra note 17 at 221 565 Case Concerning the Territorial Jurisdiction of the International Commission of the River Oder 1929 P.C.I.J ser. A , No. 23, 27. [hereinafter as River Oder Case] 566 Kansas v. Colorado, 206 U.S. 46 (1907). [hereinafter as Kansas v. Colorado] 567 Lammers, supra note 3 at 363 -64. Page | 333 weighing factors in favour of one riparian's use of a river against factors in favour of another riparian's use of a river568.
As laid down by the ICJ in the North Sea Continental Shelf Case between Germany and Denmark and Germany and Netherlands, what constitutes ‘reasonable and equitable’ utilization is not capable of precise definition. The issue turns on a balancing of relevant factors and must be responsive to the circumstances of individual cases569.
The Helsinki Rules state that each basin state is entitled to ‘a reasonable and equitable share in the beneficial use’ of the waters, in accordance with the relevant factors in each case570.
The 1997 UN Watercourses Convention identifies various factors relevant to determining what utilization is equitable and reasonable571.
International and domestic decisions have relied upon the principle of equitable utilization for resolving international river disputes.572 It is pertinent to note that that the no substantial harm principle and the principle of equitable utilisation do not always go hand in hand. However, the extent of harm inflicted to the victim State will always remain a very important factor in determining whether a certain use can be regarded as equitable so that in many cases application of the no substantial harm principle may lead to the same result as the principle of equitable utilization573.
While the principle of equitable use has not yet been displaced, international environmental law has evolved such that now there are additional factors that must be considered when determining what is "reasonable" within the doctrine of equitable use574.
3. Principle of Optimal Use
568 Lammers, supra note 3 at 364. 569North Sea Continental Shelf Case (F.R.G/Den.; F.R.G./Neth.),1969 ICJ 3, 50,¶ 93 (20 February 1969). 570 Helsinki Rules, supra note 21 Art. 5(3). 571 Convention on the Law of Non-Navigational Use of International Watercourses, Art. 6, May 21, 1997. [hereinafter as UN Watercourses Convention] 572 River Oder Case, supra note 32; Nebraska v. Wyoming, 325 U.S. 589 (1945); Kansas v. Colorado, supra note 33. 573 Lammers, supra note 3 at 368. 574 A. Dan Tarlock, Safeguarding International River Ecosystems in Times of Scarcity, 3 U. DENY. WATER L. REV. 231, 241 (2000). Page | 334 The principle of optimal use of the waters of an international watercourse . . . implies that riparian States must together strive at making the optimal use which could be made of the waters as if they were not intersected by state frontiers575.
Optimal use seeks the most economically beneficial use of the river and does not necessarily pursue the most equitable use. To distinguish optimal use from beneficial use, as used in Article IV of the Helsinki Rules, the Commentators characterized an optimal use as "the most productive use to which the water may be put . . . the most efficient methods known in order to avoid waste and ensure maximum utilization576.
The International Court of Justice in the Gabcikovo Nagymaros Project Case realised the importance of optimum utilisation of resources577. Thus along with the application of the equitable utilisation principle, the optimal use principle has slowly, but surely earned its place in treaty as well as customary international law.
ENVIRONMENTAL IMPACT ASSESSMENT (EIA) AND STATE CO-OPERATION IN
TRANSBOUNDARY USAGE OF RIVERS
The principles discussed above apply to any general use of a resource which would or might potentially affect another state. However, there a few procedural principles that a state is obligated to follow when it plans to undertake a development project affecting a shared resource.
These international obligations include a duty to:
i. Conduct Environmental Impact Assessment ii. Notify, inform and consult all states likely to be affected
The Helsinki Rules also oblige a state which is planning to undertake or approve a development that is likely to alter the regime of the catchment basin to provide notice to any lower riparian state which is likely to be affected due to the anticipated changes in the water system 578. Such notice must include all
575 Id. at 371. 576 Helsinki Rules, supra note 21 at 487. 577 Gabcikovo-Nagymaros Project Case, supra note 25 at 38, ¶147. 578 Helsinki Rules, supra note 21, Art. 29 Page | 335 essential facts that are necessary to enable the recipient nation to make its own assessment of the probable effect of the proposed alteration579.
The UN Watercourses Convention also provides for notification and the sharing of information on the
580 possible effects of the proposed project.
1. Environmental Impact Assessment (EIA)
The principle of prevention, as a customary rule, has its origins in the due diligence that is required of a State in its territory. To fulfil its obligation to exercise due diligence in preventing significant transboundary environmental harm, a State must, before embarking on an activity having the potential adversely to affect the environment of another State, ascertain if there is a risk of significant transboundary harm, which would trigger the requirement to carry out an environmental impact assessment581. The Convention on Biological Diversity also necessitates the requirement to conduct an environmental impact assessment (EIA) for projects which are likely to have adverse effects 582. The duty to conduct EIA has also been enshrined in many international instruments583. The ICJ has also referred to is as “a practice, which in recent years has gained so much acceptance among States that it may now be
584 considered a requirement under general international law.”
An environmental impact assessment must be conducted prior to the implementation of a project. Moreover, once operations have started and, where necessary, throughout the life of the project, continuous monitoring of its effects on the environment shall be undertaken.585 Conversely, however,
579 Id. 580 UN Watercourses Convention, supra note 38, Art.11-17. 581 Pulp Mills on the River Uruguay (Arg. v. Uru.), 2010 ICJ 14, at 55-56, ¶101 (20 April 2010) [hereinafter as Pulp Mills Case] 582 CBD, supra note 29, Art. 14. 583 ASEAN Agreement on the Conservation of Nature and Natural Resources, Art. 20(3)(a), July 9, 1985 [hereinafter as ASEAN Agreement]; Council Directive 85/337/EEC on the Assessment of the Effects of Certain Public and Private Projects on the Environment, Art. 2(2), 1985 OJ L 175; Convention for Co-operation in the Protection and Development of the Marine and Coastal environment of the West and Central African Region (Abidjan Convention), Art. 13, Aug. 5, 1984; Convention on Environmental Impact Assessment in a Transboundary Context (Espoo), Art. 2, Feb. 25, 1991, 30 ILM 802 (1991) [hereinafter as Espoo Convention] United Nations Convention on the Law of the Sea, Art. 206, Dec. 10, 1982, 21 ILM 1261; World Charter for Nature, Art. 21(d), G.A. Res 37/7, U.N. GAOR, 37th Sess., at 17, U.N. Doc. A/Res/37/7 (1982). [hereinafter as World Charter] 584 Pulp Mills Case, supra note 48 at 83, ¶204. 585 Id. at 83-84, ¶ 205. Page | 336 the ICJ itself has also noted that if there is an absence of significant transboundary harm, the need to conduct an EIA does not arise586.
Article 29 of the revised Helsinki Rules587 dictates that where there is the potential threat of damage from activities of one co-riparian nation on the environment of another, the adversely affected nation has an equal right to participate in the EIA process even though the project may be completely outside its territory. This joint EIA process shall include: (a) an assessment of the waters and the environments likely to be affected; (b) the provision of a detailed description of the proposed activity and its likely effects, with particular emphasis on any trans-boundary effects; (c) the identification of ecosystems likely to be affected, including an assessment of the living and non-living resources of the relevant water basin or basins; (d) a description of mitigation measures appropriate to minimize environmental harm; and (e) an appraisal of the institutional arrangements and facilities in the relevant drainage basin or basins588. The obligation to conduct a joint EIA has also been reiterated in various treaties and conventions589. Even though there is a need to conduct joint EIA whenever necessary, EIA has also been recognised to be a national procedure590. It is for each State to determine in its domestic legislation or in the authorization process for the project, the specific content of the environmental impact assessment required in each case, having regard to the nature and magnitude of the proposed development and its likely adverse impact on the environment as well as to the need to exercise due diligence in conducting such an assessment591.
Thus, the requirement to conduct an EIA has become a part of treaty as well as general international law and is now an international obligation. Further, the EIA procedure has to also involve either directly or through the regular exchange of information, any state that might be affected by the proposed development. In consonance with this international obligation, it is a state’s duty to incorporate the EIA
586 Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicar.), 2015 ICJ, Gen. List Nos. 150 & 152, at 45-46, ¶105 (16th Dec. 2015). 587 Int'l L. Ass'n, Water Resources Committee, Art. 29 Berlin Conference (2004): Water Resource Law, Fourth Report 16. 588 Id. Art. 31. 589 Abidjan Convention, supra note 50, Art. 4.; Espoo Convention, supra note 50, Art. 590 Espoo Convention, Id. Art. 1, Art. 3; Articles on Prevention of Transboundary Harm, supra note 22, at 129; Rio Declaration, supra note 28 Princ. 17. 591 Pulp Mills Case, supra note 48, at 83, ¶205. Page | 337 procedure into its domestic law. E.g. India has included provision in the Environment Protection Act, 1986 for the conduct of EIA. 2. Notify, Inform and Consult In a situation where a state proposes to carry out an activity that will potentially affect another state, the state likely to be affected has to be the primary judge of the effects of such activity on its territory. The state conducting such activity cannot unilaterally decide the effects of the activity on another state. In keeping with this, all states likely to be affected are entitled to information on such proposals592. The CBD provides for notification, exchange of information and consultation on activities likely to have a significant adverse effect on the biological diversity of other states or areas beyond national jurisdiction593. Principle 20 of the Stockholm Declaration relates to information exchange, consultation and notification, which are elements of the principle of good faith and good neighbourliness elaborated by Principle 7594. The Rio Declaration takes several steps beyond the Stockholm Declaration by supporting the development of ‘procedural’ techniques for implementing international standards (including the provision of, and access to, information relating to environmental matters, and recognising the need for participation of concerned citizens) supporting environmental impact assessments, and calling for notification, information exchange and consultation595. The obligation to notify, inform and consult has been incorporated in various bilateral596 as well as multilateral597 treaties and conventions and in other instruments of soft law598. Thus the obligation to notify is a part of customary international law. This has been reiterated by the ICJ in the Corfu Channel Case599. The New Delhi Declaration also suggested that transparent structures should be established which involve all interested parties, including non-state actors, in the consultation process600.
592 Lake Lanoux Arbitration, supra note 24 at 314 ¶21. 593 CBD, supra note 24 at 314 ¶21. 594 Stockholm Declaration, supra note 19. 595 Rio Declaration, supra note 28 Princ. 19. 596 Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin, Art. VII, Apr. 5, 1995. 597 ASEAN Agreement, supra note 50 Art. 19, Art. 20; Antarctic Environmental Protocol to the Antarctic Treaty (Washington), Art. 15(2) (b), Dec. 1, 1959, 402 UNTS 71; Espoo Convention, supra note 52 Art. 2(4), Art. 3(1), Art. 3(7); World Charter, supra note 50 Art. 16. 598 International responsibility of States in regard to the environment , G.A. Res. 2996 (XXVII), U.N. GAOR, 27th Sess., at 42, U.N. Doc. A/RES/2996 (1972); United Nations Conference on Environment and Development, Agenda 21, ¶39.10 (1992). 599 Corfu Channel Case, supra note 25 at ¶ 22.1. 600 Int'l L. Ass'n, ILA New Delhi Declaration of Principles of International Law Relating to Sustainable Development, 2 April 2002, 2 INT'L ENVTL. AGREEMENTS: POL., L. & ECON. Page | 338
Therefore it can be concluded that apart from the well established customary and general principles of law governing international rivers and their transboundary usage, some procedural aspects like EIA and the obligation to notify, inform and consult have also earned their place in the same bracket. The development of these procedures has been the result of the need to balance development and environmental protection. This balance has come to be known as Sustainable development. Strictly adhering to the principles of no transboundary harm, equitable utilisation or optimal use might hinder the development of a state and might restrict its growth policies. Thus a new of procedures was developed so that states could carry out developmental activities, even though they might cause transboundary, subject to the limitations laid down by the procedures. CONCLUSION
The principles of international environmental law, in general, had undergone a massive change with the coming of industrialisation. Once the industrial revolution had settled, the need for environmental conservation was felt. However, very few states had achieved “developed” status. Thus the developing nations required to undertake certain developmental projects that posed a potential threat to the environment. This gave rise to the concept of ‘sustainable development’. This change in environmental law and policies naturally had an impact on river law. The chinks in the traditional principles became evident and new principles were founded. However, these principles although much better suited to the modern environment, posed some to development. Thus procedures such as EIA and the obligation notify, inform and consult were established to attain equilibrium between development and environmental harm. Of the new principles of international river law, the principle of optimal use has garnered the least acceptance. However, the no substantial harm and equitable utilisation principles have been ingrained into international customary law by opinio juris and state practice. The latter principle covers the shortcomings of the former by proving the standards for the legality of the use of a river. Law and policy is one such thing that cannot remain dormant. It must be dynamic and change and adapt according to the development of nations.
211, 214 (2002) at 215. Page | 339
RELIGIOUS OUTLOOK TOWARDS LGBT COMMUNITY
1. INTRODUCTION
Whenever lesbian, gay, swinger and transgender (LGBT) individuals are certainly open, perceived and clear bit of society and authorities are looked with divided information about the status of LGBT identity in the society. Apart from unassuming the combination of learning on LGBT prosperity has been made over two decades, many things remain to be researched.
What are the thoughts of the society about LGBT prosperity? Where the gap in the investigation about their existence does starts. What are the views of different religions about the LGBT community and where its grey area lies.
Page | 340 The evaluation starts from the coalition of get together which are taking place with respect to sex, race, sexualities, and gender identity. The LGBT are being recognized at various platforms but still they are not recognized by any religion and their own families and societies.
It is very essential for the society to accept them at public level so that there can be trim down the number of cases of sexual abuse and defamation towards these peoples. They should also be given religious consideration in the society.
Religious belief may be an important factor for the social acceptance of homosexuality and same sex marriage. In past few years there is a hike in the acceptance of homosexuality in the society but even after this they are humiliated in the society.
According to Bible it clearly states that “Homosexuality goes against god’s teaching”. Similarly according to Sharia Law it is punishable. Likewise Hinduism also does not recognize homosexual relationships.
A couple of lesbians, gay, and bisexuals are transgender, most are unquestionably not. “Male to female transgender people are known as ‘MTF’, transgender females, or trans women, while female to male transgender people are known as ‘FTM’, transgender folk or trans-men.
2. COMMONALITIES AMONG LGBT POPULATIONS
For a couple of years the awkwardness, for instance, race, ethnicity, and monetary status achieving disgrace at different measurement.
To all the more promptly perceive how sexuality- and sex associated disfavor are related to prosperity, imagine a world wherein sex uniqueness, same –sex interest, and same sex sexual lead are all around grasped and recognized as a segment of the conventional scope of the human condition. This world, cooperation in any of the get-togethers consolidated by LGBT would pass on no social disfavor, cause no lack of regard or individual disrespect, and result in no partition. In world, a huge gathering of issues would undermine the prosperity of LGBT individuals: major unending afflictions, for instance, dangerous development and coronary disease; transferable contaminations; mental disperses, environmental hazards, the danger of viciousness and mental
Page | 341 fighting; and the various factors that jeopardize human physical, mental fighting; and the various factors. By and broad in any case these issues would be proportional to those going towards the straggling leftovers of mankind. Only a few factors would rise for LGBT individuals unequivocally. There would be little reason behind the Institute of Medicine (IOM) to issue a give a record of LGBT restorative issues.
Despite the way that LGBT people share with whatever is left of society the full extent of prosperity perils, they similarly face a noteworthy and deficiently grasped game plan of additional prosperity risks because of an incredible degree to social disgrace.
While the experience of disgrace can change transversely over sexual and sex minorities, be- letting contacts the lives of these entire social occasions in crucial ways and thusly their prosperity. Instead of people from various other disparaged get-togethers, LGBT individuals a great part of the time are vague to social protection researchers and providers. As cleared up in later parts, this subtlety consistently exacerbates the damaging effects of disfavor. Vanquishing this elusiveness in social protection organizing and research settings is a fundamental goal if we intend to discard the prosperity varieties analyzed all through this report.
This is basics to observe that, the typical experience of disregard among people from sexual and sex minority social affairs, LGBT people have not stand off and setbacks of partition and inclination. The achievements of LGBT people throughout ongoing decades in structure a system establishment that keeps an eye on their prosperity needs, similarly as procuring certifications of their prosperity stresses from coherent bodies and government substances, give testimony regarding their obligations to restricting disrespect and working viably for equal treatment in all pieces of their lives, including moving toward appropriate social protection organizations and decreasing therapeutic administrations incoherencies. No ifs, and or but a part of the investigation alluded to in this report displays the astonishing mental quality appeared by from these masses, consistently even with noteworthy weight.
In the case namely601 Arlene’s Flowers Inc. v. Washington, The Supreme Court issued its ruling in Masterpiece Cake shop but the religious freedom issue will almost certainly make it before the Supreme Court again soon.
601Docket No. 17-108, June 25,2017. Page | 342 That’s because, as The Daily Beast’s Jay Michelson noted, the case of the Colorado baker who denied a cake to a same-sex couples on religious grounds was decided on narrow, and unusual grounds without reaching the deeper issues underneath.
In the case namely602Navtej Singh Johar and Ors. v. Union of India, struck down parts of Section 377 of the Indian Penal Code, 1860 Section 377603which criminalized sexual intercourse against the order of nature. The Supreme Court, effectively, allowed sexual intercourse between consenting adult members of the lesbian, gay, bisexual and transgender LGBT community.
3. Instances of Faiths on LGBTQ Issues:
3.1 Hinduism The third greatest religion on the earth after Christianity and Islam is Hinduism. It speaks to 14% of the overall people, with around 2 million Hindus living in the United States. Among its most notable works are the Bhagvad Gita, anyway the Vedas are seen as the real controlling substance by which one’s life is framed. Dating to 6,000 BCE, the Vedas set up the most prepared hallowed content on the Earth. In Hindu conviction, divine beings can take various structures, and all solidify the soul of Brahman. As opposed to Judaism, Christianity, and Islam which base on the exercise of a singular life time, Hindu convictions focuses on a predictable methodology of birth and revival that finally releases the veritable self from the confinements of body and the feeling of the self- a freeing of the spirit called “Moksha”. That system fuses a release from experiences including sexuality. Hindu consecrated works, in any case, don’t perceive hetero and Gay acts. While Hindu heavenly message don’t unequivocally use those terms (hetero and gay), they do perceive procreative sexual acts (inside marriage) and non procreative sexual acts, for
604 instance, oral etc.
LGBTQ EQUALITY: ON SEXUAL ORIENTATION & GENDER IDENTITY
Since there are no central Hindu, master, outlooks to LGBT issues change at different havens and ashrams. The Hindu Americans Foundation, in its course of action brief on Hindus and Homosexuality, observes that Hinduism does not give an essential significant inspiration to
602WRIT PETITION (CRIMINAL) No.76 OF 2016. 603Section 377, IPC 1860. 604https://www.hrc.org/resources/stances of faiths on LGBTQ Isuues./ (Visited On March 20, 2019). Page | 343 reject or prohibit LGBT indicial, and that given their natural extraordinary reasonableness, Hindu should not socially disregard LGBT individuals, yet should recognize them as individual sojourners while in transit to ‘Moksha’. The Vedas suggest a third sex generally described as people for whom sex isn’t procreative, either through weakness or a non appearance of need for the opposite sex. People from the third sex are not rejected, in any case and are now and again seen for having divine powers and encounters.
“The Kama Sutra, a Hindu substance identifying the joys of sexuality, communicates that proportional sex experience is to be busy with and acknowledged for benefit of its own as one of human articulations”. Everything thought of some as, Hindu social order continue being unwelcoming of LGBT people, as often as possible reflecting tempers imported from vanquishing nations, for instance the British Empire in India. “The Gay and Lesbians Vaishnava Associations ( GALVA) highlights, in its report Homosexuality, Hinduism and the third gender, the sexual direction simplicity of Hindu divinities, and notes that everything in this world is an impression of the principal subtle and extraordinary reality.
The epic Mahabharata includes the transgender character Sikhandi, and delineates the warrior Arjuna cross-dressing to wind up Brihannala, instructor of expressive arts.” GALVA further notes, Vedic culture permitted transgender individuals of the third sex, known as hijras, to live straightforwardly as indicated by their sexual orientation personality. As expressed above, contemporary dispositions will shift crosswise over various Hindu associations and society.
ON MARRIAGE EQUALITY
As per the Dharma Shastras, marriage has unmistakable capacities, including Prajaa, or multiplication. A few, thusly, see same-sex marriage has unsuitable. In any case, it's additionally certain that the Dharma Shastras are guides – not restricting writings – and that there are numerous approaches to characterize or translate the possibility of Prajaa. Today, marriage balance appreciates support among Hindu Americans and same-sex Hindu wedding functions are praised in the United States by some Hindu clerics.
ISLAM SUNNI AND SHIA With over a billion supporters, Islam is the second greatest religion on earth, and noted for its varying assortment of culture and ethnicity. Built up by the Prophet Muhammad (congruity land)
Page | 344 in 622 CE, Islam is an Abrhamic religion that confers its establishments to Judaism, Christianity and sees Abraham,Moses and Jesus as Prophets . Its holy compositions are the Qur’an, and helper sources are found in social practices, for instance, Sunnah and less so in Hadith which continue being considered and deciphered by the two scientists and the solid. At the focal point of Islam is the Shahadah a declaration of certainty that states, “There is no god anyway God, and later alterations included and Muhammad is the conveyance individual of God. The Shahadah is one of the five pillars of Islam that furthermore fuse unselfish giving, fasting, entreating a couple of times each day and going on voyage to mecca if monetarily achievable in any occasion perfect. Since Islam has no central overseeing body, it is foolish to hope to state clear methodologies regarding issues essential to LGBT social people. Dependent upon nationality age, family youth and social effects. Islamic individuals and foundations fall along wide range from welcoming rejection that can be separate by an extent from social sequestration to physical severity.
LGBTQ EQUALITY: ON SEXUAL ORIENTATION & GENDER IDENTITY:
Transgender individuals are seen and recognised in various Islamic orders far and wide. Believe it or not the likelihood of a man or woman it is phenomenal that a straightforwardly LGBT Muslim feels totally welcome at a standard mosque in the United States. Social measures and traditional readings of sacred messages habitually keep up a hetero regulating matched of sex recognizing verifications and sexual presentation that don’t consider the extent of identities present in the society. Regardless according to a progressing outline by public religion centre the larger part (52 %) of American Muslim agreed that “society should support of homosexuality. A creating number of Islamic scientists, generally in the west have started reconsidering Islamic exercises on same-sex associations and whether a broad judgment of LGBT people is a blunder.
There are many different manners which creates open entry ways for choice and noteworthy love and system. Muslims for progressive value have setup unity mosque and the Muslims alliance for sexual and gender diversity has retreat for LGBTQ for Muslims in some part of the world.
Under Islamic Laws Muslims after reassignment therapeutic methodology suffer expulsion socially and economically. They are often prone to verbal and physical violence.
Page | 345 MARRIAGE EQUALITY:
Likewise, with Christianity and Judaism, Islam's sacrosanct writings have been utilized to abuse LGBTQ individuals over the hundreds of years. A conventional perusing of the Qur'an can prompt the judgment of same-sex connections and in this way of same-sex marriage. Nonetheless, in light of the fact that there is no focal administering specialist, networks and people are allowed to settle on their own decisions with respect to this issue. Same-sex weddings are performed by not many imams independently, and at some Unity Mosques, and comparable comprehensive mosque networks over the United States and Canada. One of the country's most noticeable American Muslims, United States Representative Keith Ellison (DMN) states unequivocally, I put stock in extending marriage rights and duties to same-sex couples and to have those relational unions perceived by different states and the national government.
In the case namely605NAZ Foundation v Government of N.C.T Delhi, The Delhi High Court passed a judgment in favor of the LGBTs in the year 2009 declaring Section 377 of the Indian Penal Code which criminalizes homosexuality in India to be unconstitutional and violative of Articles 14, 15 and 21 and read down the section, allowing consensual sexual activity between two homosexuals above 18 years of age.
In the case namely606 Suresh Kumar Koushal and another v. NAZ Foundation and Others, where the Supreme Court struck down the decision by the High Court in the NAZ Foundation Case. This project deals with the constitutionality of Section 377 of the Indian Penal Code which criminalizes sexual activity against the order of nature i.e. criminalizes any sexual activity other than the heterosexual penile-vaginal. Homosexuality is the sexual propensity for persons of one’s own sex. The cultural construction of sexuality discredits any sexual activity that is ‘non- beneficial’ of the male semen Homosexuality is condemned and penalized because it leads to the loss of the semen which holds the seed for procreation.
LGBT COMMUNITY UNDER CHRISTIAN LAW AND INSTITUTION Though past composing has fail to barbecue the activity of religion in school support of LGBT social events and nonseparation methodologies, the composition on religion and the lifestyle wars gives potential bits of learning into why a couple of Christian schools and universities
6052010 Cr LJ 94. 606CIVIL APPEAL 10972 OF 2013. Page | 346 might be complete of LGBT under studies while others are definitely not. Clearing up divisions both between and inside religious get together over a extent of social issues, specialists most conventionally point to direct and liberal religious feelings.
For example, Wuthnow(1988,1989) fights that Christians in the US who hold conventionalists religious convictions the people who express a trust in the master of house of prayer pioneers just as hallowed writing will undoubtedly repudiate untimely bequests, no issue separate from laws, and LGBT rights. Christian who hold liberal religious feelings the people who adhere to a pioneer scrutinizing of the sacrosanct writings will as a rule grasp dynamic social feelings and line up with the Democratic Party.
‘Hunter’ talks about the standard and dynamic camps. A broad collection of research supports the like hood that Christians are isolated along conventionalist and liberal lines, incorporating through close plan with preservationist ideological group (the Republican party) and to a lesser degree, the liberal ideological gathering ( the Democratic gathering) in the United Nation. For example, ‘Wilcox’ relates the ethical majority fight pushed by numerous religious right social affairs especially evangelicals in the late 1970s and 1980s to propel Republican candidates who maintained ordinary view points on family life. According to ‘Fetner’ the arrangements between religious rights and social events and republicans to help count exercises that would move back non separation laws amid the 1980s.
Notwithstanding the way that these records of the liberals and the moderate’s political parties of the world identify perspective of a split among the different religions toward the belief of LGBT peoples. Every religion has its own view. They work on their own principles and faiths of their religion. For example, ‘Kniss’ thoghut about LGBT rights as a free thinker and common religious presentation inside the religion. Some religious traditions get maverick presentation, believing that sacred spots should focus on improving individuals, for instance, by confining takes a shot at (checking homosexuality) that undermine their moral flawlessness. Distinctive religious shows shared presentation, holding that spots of love should focus on changing progressively broad systems, including by achieving an even more socially and monetarily just society.
Page | 347 LGBT UNDER BUDDHIST LAW Buddhism is generally based on ideas that cultivate singular illumination and support moral duty. It is some of the time depicted more as a theory or brain science than a religion. In spite of the fact that fluctuated practically speaking and convictions, most of people who buy in to Buddhism have a place with one of three noteworthy schools of thought: Theravada Buddhism, Mahayana Buddhism or Vajrayana Buddhism. Theravada Buddhism, otherwise called Southern Buddhism, is seen as the more conventional type of Buddhism. Rehearsed fundamentally in southern zones of Asia, Theravada Buddhism is considered the most established and most customary school of the three. On the other hand, Mahayana Buddhism, otherwise called Northern Buddhism, is viewed as an increasingly different type of Buddhism, while Vajrayana Buddhism, otherwise called Tibetan Buddhism, joins real parts of both Theravada and Mahayana Buddhism and has turned into a much-venerated type of Buddhism in the United States. In the West, Theravada Buddhism, Zen Buddhism (a part of Mahayana Buddhism) and Tibetan Buddhism are generally dominating.
The reason for all schools of Buddhism incorporates the Three Universal Seals (reason of presence), the Four Noble Truths (philosophical illumination), the 12 Links of Dependent Origination (laws of presence) and the Eight-Fold Path (manual for edification). As a part of the Eight-Fold Path, the Five Precepts fill in as willful rules forever and are the bases of Buddhist ethical quality. They incorporate a person's decision or readiness to be: Mindful of the enduring brought about by viciousness: I embrace the preparation to cease from executing or submitting savagery toward living creatures. I will endeavour to treat all creatures with empathy and cherishing generosity. Mindful of the enduring brought about by robbery: I embrace the preparation to cease from taking to abstain from taking what isn't unreservedly given. I will endeavour to rehearse liberality and will be careful about how to utilize the world's assets. Mindful of the enduring brought about by sexual wrongdoing: I embrace the preparation to avoid utilizing sexual conduct in manners that are destructive to myself and to other people. Mindful of the enduring brought about by destructive discourse: I embrace the preparation to avoid lying, from unforgiving discourse, from inert discourse or tattle. I will endeavour to talk and write in manners that are both honest and proper. Mindful of the enduring brought about by liquor and medications.
Page | 348 LGBTQ EQUALITY: ON SEXUAL ORIENTATION & GENDER IDENTITY
Sexual direction explicitly was not expounded upon by ‘Siddhartha Gautam’, nor is there any reference or direction for the peoples in regards to sexual direction or same sex conduct inside the “Pali canon” the scriptural writing that hold the Buddha’s unique lesson. The Vinayana, Buddhist content for priest, restricts Buddhist priests and Nuns from sexual association with men, ladies and those of different sexes, for example, “Pandanka” deciphered as those with vague sexual qualities or individuals who don’t fit in with sexual standards, like whores. These literary references don’t target LGBTQ individuals explicitly, as everybody inside the devout request is relied upon to forgo all types of sexual relations. This training is particularly normal inside Theravada Buddhism, which centers vigorously around the ascetic custom.
Zen Buddhism does not make a qualification between the same sex and inverse sex connection. Rather, the desire isn’t to mischief, abuse or controls others, which would straightforwardly damage the third statute. For example, Zen Buddhists frequently elude to indulgence and prostitution as practice that damage the middle way.
With respect to Buddhism, the Dalai Lama’s viewpoints are mind boggling and developing. On the constructive side, he has freely denounced brutality against LGBTQ individuals and has been accounted for to have stated, if the two individuals have taken no promises of celibacy nor is hurt for what reason should it not be acceptable. Yet in a 1997 public interview he remarked that from a Buddhist perspective lesbian and gay sex is by and large thought to be sexual unfortunate behavior have been blended and fairly inundation. Amid a gathering with agents of the LGBTQ people group, the dalai lama allegedly indicated enthusiasm for how current logical research may make new comprehenion of the Buddhist writings, recognising an eagerness to think about how conceivable it is that a portion of the lessons might be explicit to a specific social and notable setting.
ON MARRIAGE EQUALITY
Generally speaking, it is hard to qualify Buddhism’s view point on same sex marriage, since points of view fluctuate significantly inside the religion. On account of Buddhism’s centre topic to achieve illumination, the way one takes inside the religion is generally close to home, just like one’s convictions. Consequently, most Buddhist writing demonstrates that resistance to or
Page | 349 support for marriage rights for same sex couples is an individual, as opposed to religious, articulation.
3.5. LGBT UNDER JAINISM Jainism’s perspective on homosexuality is easy to clarify. “no sex at all period”. They don’t advance one method for sexuality over another, however that any sex that isn’t for reproduction isn’t allowed. Obviously, since homosexuality can’t be utilized to repeat, it is consequently not permitted. In any case, it is directly there with any hetero sex for the sake of entertainment, pre- marriage sex, and some other kind.
3.6 .LGBT UNDER SIKHISM: Sikhism doesn’t really have numerous lessons on sexuality one way or the other. It fundamentally means to not abhor or resent others paying little respect to their living being. While a few evangelists, for example, GianiJoginder Singh Vedanti, denounce it, many feel that, in view of what has been expressed in the Guru Granth Sahib, is anything but a teriible thing. The Sikh Gurus chiefly support the wedded life between two spirits, which don’t have sexes. There is little discussions, besides the ministers, and LGBT are welcome to sanctuary and different exercises. Be that as it may, since it isn’t explicitly tended to, they don’t hold wedding services for LGBT in their gurudwaras.
4. CONCLUSION
The LGBT society or GLBT social order, routinely implied as the gay system, is a vaguely described assembling of lesbian, gay, cross-sexual, and transgender (LGBT) and LGBT resilient people, affiliations, and subcultures, joined by an ordinary culture and social improvements. These social orders all things considered recognize pride, grouped assortment, qualifications and sexuality. LGBT activists and sociologists see LGBT social prier filling in as solution for heterosexism, homophobia, biophobia, transphobia, sexualismand conformists loads thought to exist in the greater society. Homosexuality is a tendency or need including sexual thankfulness for people of one’s own sex. In like way use, the term gay is used to insinuate both same-sex arranged folks and females. The word Gay is routinely used as comparable word for male gay
Page | 350 direct while the term Lesbian means women who are expressly destroyed in to other women. To the extent sexual course of individual, a cross-sexual individual is expressly dismantled in to the two individuals. Notwithstanding the way that homosexuality’s has a long history in India; the gay advancement is commonly starting. So far, most gay individuals in 220 India did not have various social and social streets to express their sexuality. This is developing now, in view of progressively vital care and guidance. Various men of gay heading are separating themselves as gay and getting a handle on a lifestyle that contradicts marriage and various shows a for the most part hereto society.
They stay, as it were, imperceptible and structure orchestrates that shy a long way from the open glare motivated by a distrustful dread of social and familial reverse discharge. The new understanding relied upon concentrates that documented a high regularity of same-sex feelings and lead in individuals, its inescapability across over social orders among for all intents and purposes all non- human primate species. Examinations using mental tests couldn’t separate hereto from gay bearing. Research moreover demonstrated that people with gay heading did not have any objective mental brokenness or incapacities in judgment, soundness and expert limits. Mental psychoanalytic, therapeutic and enthusiastic wellbeing specialties right now consider gay indivials normal assortments of human sexuality. Homosexuality has an old history in India. Old concentrated writing like Rig- Veda which return around 1500 BC and figures and leftovers depicts sexual acts between women as exposures of a cultured reality where sexuality relied upon happiness and readiness. The depiction of gay acts in the Kamasutra the Harems of energetic 221 young fellows kept by Muslim Nawabs and Hindu Aristocrats, male homosexuality in the medieval Muslim history, affirmations of homosexuality in the tantric traditions are some irrefutable affirmations of same sex relationships. Homosexuality is ordinarily seen as an illegal subject by both Indian normal society and the organization. Open discuss homosexuality in India has been controlled by the manner in which that sexuality in any structure is on occasion analyzed straight forwardly. Recently in any case auras towards homosexuality have moved to some degree. In particular, there have been depictions and talk of homosexuality in Indian news media and by bollywood on 2 July, 2009 Delhi High Court decriminalized gay intercourse between consenting adults and settled on a choice about fragmented 377 of the Indian Penal Code to battle with the real rights guaranteed by the Constitution of India.
Page | 351
Author – Ravi Singh Chhikara
“Restraint on Legal Proceedings by Contract”
Abstract
A suit refers to proceedings by a party/parties against another party/parties in the court of law in which the plaintiff seeks the remedy that the law provides for the redress of an injury. It has been observed that parties in their agreements attempt to curtail the right to sue of other parties either by forfeiting their rights after the stipulated time or by limiting the time within which only they can sue. If the parties are allowed to reduce the time period allowed by Limitation act to make claims, it would indirectly mean taking the fundamental right of a party.Hence, Sec 28 of the Indian Contract Act, 1872 makes any clause in the agreement which curtails the right to sue to be void.
This paper tries to analyze the situations that when and how right to sue can be curtailed by way of exceptions in Sec 28. It seeks to provide that jurisdictions of which courts can only be curtailed and how the remedy can be enforced even after signing the contract. It also explains the new amendment of Sec 28 in the year 1997 and its effects of removing the artificial difference which parties used to create by curtailing the right itself instead of limiting the time period to sue.
What the Act says
Sec 28. Agreements in restraint of legal proceedings void – i[Every agreement, -
Page | 352 (a) by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals or which limits the time within which he may thus enforce his rights; or (b) which extinguishes the rights of any party thereto, or discharges any party thereto from any liability, under or in respect of any contract on the expiry of a specified period so as to restrict any party from enforcing his rights, is void to that extent]
Exception 1. – Saving of contract to refer to arbitration dispute that may arise – This section shall not render illegal a contract, by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of subjects shall be referred to arbitration, and that only the amount awarded in such arbitration shall be recoverable in respect of the dispute so referred. iiSuits barred by such contracts- When such a contract has been made, a suit may be brought for its specific performance; and if a suit, other than for such specific performance, or for the recovery of the amount so awarded, is brought by one party to such contract against any other such party, in respect of any subject which they have so agreed to refer, the existence of such contract shall be a bar to the suit.
Exception 2 –Saving of contract to refer questions that have already arisen – Nor shall this section render illegal any contract in writing, by which two or more persons agree to refer to arbitration any question between them which has already arisen, or affect any provision of any law in force for the time being as to references to arbitration. iiiException 3 –Saving of guarantee agreement of a bank or a financial institution. – This section shall not render illegal a contract in writing by which any bank or financial institution stipulate a term in a guarantee or any agreement making a provision for guarantee for extinguishment of the rights or discharge of any party thereto from any liability under or in respect of such guarantee or agreement on the expiry of a specified period which is not less thanone year from the date of occurring or non-occurring of a specified event for extinguishment or discharge of such party from the said liability.
Page | 353
Restriction on legal proceedings by a contract
It should be noted down that in the section, it is expressly written that an agreement restricting the legal proceedings would be void only to that extent which means that the whole agreement will not be void, but that particular clause which restricts the right would be held void by the court. One of the most important rights which is not covered by this section is that the right to appeal. Hence, a party to a suit by a contract may agree to not to appeal
iv against the decision.
The Law of Limitation prescribes the time-limit for different suits within which an action may be brought by an aggrieved party for redress. Any clause in an agreement which attempts to reduce this time period will be void as per Sec 28. For instance, if law of limitation provides 5 years for a particular suit within which any party can bring it claim and an agreement provides only 3 years in which the party can bring its claim, then it would be a void clause. Thus, a clause in a policy of life insurance providing a clause in an agreement that no suit to recover under this policy shall be brought after one year from the death of
v assured was held void by court.
Amendment
WhyAmendment: -There used to be a practice among the parties of creating a distinction between a clause reducing the time limit within which they can bring their claims and a clause which provides for extinction of rights or discharging their liabilities after a specified period. Indirectly, parties used to prevent the other party from seeking the remedy provided
vi by the law by extinguishing the right itself.
Effect: -This difference was eliminated by the legislature by an amendment in the section in year 1997. Now, all the clauses which reduce the normal period of limitation would be void. Now Clause (b) of Sec 28 restricts these clauses and makes them void.
Page | 354 Before Amendment: - Clauses in agreements which used to forfeit the rights if no action is brought within the stipulated time were held valid by courts. A clause in policy of life insurance provided that if a claim is made and rejected and an action or suit is not brought within 3 months after such rejection, all benefits under the policy would be forfeited. This clause was held valid by the court.vii Court explained the distinction between the forfeiting or rights and limitation of time viii :- “The distinction may be a fine one but it is nonetheless a fundamental distinction. The arrangement in the one case takes it for granted that the right as well as the liability exists, but the time for enforcing it is sought to be limited. While in the other case, the parties agree that the right as well as liability shall stand extinguished if a specified event occurs.”
“What Sec 28 forbids, is not extinguishment of the rights or liabilities of a party to a contract on the happening of a specified event, but the limiting of the time within which a party may enforce his rights. It is obvious that a party will have no right to enforce, if the rights have already been extinguished under the contract. In such a case, there can be no question of the time for the enforcement of rights being limited. What happens is that the right itself ceases to exist.”
Partial restriction applicable to jurisdiction
Partial restriction as to jurisdiction is allowed subject to some conditions. In a case ix , contract was falling under the jurisdiction of two courts i.e Bombay and Alipore courts. However, the contract provided that “any dispute arising between the parties, settlement of the same legally or otherwise, will be decided in Bombay.” This clause was held valid by court. Lahiri J explained that “If there are two courts which are equally competent to try the suit, an agreement between the parties that the suit should be instituted in one of those two courts cannot be said to be an absolute restriction on the right of talking legal proceedings.” However, in various decisions, court has also made it clear that the parties cannot confer the jurisdiction on courts which they do not possess under the Civil Procedure Code.
Page | 355 Whether subsequent parties will be bound by contract made by original contracting parties is a question of fact to be decided in each casex. If an original party is not bound, then subsequent party will not be bound.xi It is to be decided in each case whether the subsequent
xii parties were also made aware by the terms.
However, only the territorial jurisdiction of civil courts can be extinguished and not the High court or Supreme Courtxiii. Also, a Lok Adalat is not a court hence its jurisdiction cannot be extinguished by way of contract. Hence a contract extinguishing the jurisdiction of Hyderabad court and a party instituted suit in Lok Adalat at Hyderabad was held to be valid, as restriction was not applicable to it.xivIt is to be noted that the clause will be valid only
xv when a contract is formed and not when the contract ends before conclusion.
EXCEPTIONS
1. Future disputes to arbitration
A contract made by parties to refer the disputes which may arise between them to arbitration and only that award would be recoverable is a valid contractxvi but the clause in the agreement to exclude the right to proceed against the award given by arbitration is held to be void. The arbitration clause would remain binding even when the contract ends. Hence, it would be right to say that a contract may end but the arbitration clause may not and also, an arbitration clause may not be valid but the rest of the contract may be validxvii. A clause providing for arbitration and simultaneously for the non-applicability of Arbitration act would be a void clause and only that clause would be struck downxviii.
2. Existing questions to arbitration
If the parties make an agreement to refer the disputes already arisen to arbitration, that would
xix be a valid agreement and parties would be bound by it.
3. To safeguard banks and financial institutions
This exception allowed banks and financial institutions to invent their own rules of prescriptions. It also allowed the banks from keeping their guarantee instruments open and valid till the expiry of period of limitation under the Limitation Act, 1963.
Page | 356 CONCLUSION
Sec 28 of Indian Contract Act protects one of the vital rights of its citizens that is right to sue. It has been observed that many parties exploit the needy ones by making unfair terms in contract. To me, Sec 28 not only fulfills the constitutional rights of its citizens but also fulfills the International obligations. The preamble of Universal Declaration of Human Rights emphasis that ‘recognition of inherent dignity and of the equal and inalienable rights of all members of human family is the foundation of freedom, justice and peace in the world. It is important to every state to protect the rights not only by law but by way of equity and reasonability also. Any party which restricts the nation to fulfill its international law obligations must be held void by courts. Sec 28 rightly conveys the message to the parties that even after signing the contract, nobody can block the remedies given to its citizens by their State.
Page | 357 i Subs. By Act 1 of 1997, S.2 ii This clause was repealed by the Specific Relief Act, 1877 ( 1 of 1877), S.2 and Sch.1. However, it is written here because Contract Act is in force in some Scheduled Districts to which the Specific Relief Act does not apply. iii Ins. By Act 4 of 2013, S.17 and Sch. (w.e.f 18-1-2013). iv Munshi Amir Ali v Inderjit Koer, (1871) 9 Ben LR 460, a decision of the Privy Council before the Contract Act was passed and has been followed by Allahabad HC in Ashburner & Co v Anant Das, ILR (1876) 1 All 267. v Ma Ywes v Chin Mutual Life Insurance Co Ltd, 91 IC 622. viThe amendment gave the effect to 97th Report of the Law Commission of India. vii Girdharilal Hanumanbux v Eagle Star & British Dominions Insurance Co Ltd, (1923) 27 CWN 955; DDA v Bhardwaj Bros, 2014 SCC OnLine Del 1581: AIR 2014 Del 147, an agreement providing for forfeiture or waiver of right if no action is commenced within the period stipulated in the agreement has been held to be not void. viii Followed, Kasim Ali v New India Insurance Co, AIR 1968 J&K 3. See also Governor General in Council v Firm Badri Das Gauri Dutt, AIR 1951 All 702. ix Continental Drug & Co Ltd v Chemoids & Industries Ltd. x See V. Raja Rao v A.P.T. Co, (1969) 2 APLJ 151 where court concluded that consignee to whom the booking documents are indorsed to enable him to obtain delivery at the destination would also be bound by the terms. xi Govt of Rajasthan v Venkataramana Seshiyer xii East India Transport Agency v National Insurance Co Ltd, AIR 1991 AP 53 xiii P.R Transport Agency v Union of India, (2005) All LJ 3568: AIR 2006 All 23 (DB) xiv Inter Globe Aviation Ltd N. Satchidananad, (2011) 7 SCC 463 : (2011) 3 KLT 295 : ( 2011) 3 CPJ 1 (SC) xv Orissa Agro Industries Corpn Ltd v KCS (P) Ltd, 2004 AIHC 1788 (Ori). xvi See National Insurance Co Ltd v Calcutta Dock Labour Board, AIR 1977 Cal 492. xvii Jawahar Lal Barman v Union of India, AIR 1962 SC 1810 : 1963 3 SCR 183 xviii Rajasthan Housing Board v Engineering Projects (India) Ltd, AIR 2000 Raj 200 xix See UOI v Kishorilal Gupta & Bros, AIR 1959 SC 1362: (1960) 1 SCR 493
CAN ARTICLE 370 BE SCRAPPED?– A LEGAL ANALYSIS
By – Tanuj Dewan & Tushar Seth
ABSTRACT
Article 370 which grants a special status to the State of Jammu and Kashmir was incorporated as a temporary provisionin the Constitution of India, in order to give a suitable place to the Instrument of Accession. Our constitution framers surmised that the State was not yet ripened for its integration with the Dominion of India.Therefore, the Constituent Assembly of Jammu and Kashmirwas formed andempowered to recommend eitherthe articles of the Indian Constitution thatshould be made applicable to the State, or the abrogation of Article 370 altogether. But the State’s Constituent Assembly dissolved itself without recommending the abrogation of Article 370.
Therefore, the validity of Article 370 has always remained controversial and a subject matter of debate for legal experts and politicians. Many people and political parties argue that a temporary provision should not have been allowed to stay in the Indian Constitution for such a long time.
Thus, several calls for its abrogation have also been made over the years. This debate, however, seems to have no concrete solution in the years to come because a temporary provision, now seems to have become a permanent one.
The present study aims to examine the events of history which led to the framingof Article 370, analyse its provisions andascertainwhether it can be scrapped or not.
I. FRAMING AND DEVELOPMENT OF ARTICLE 370
The State of Jammu and Kashmir is mentioned in the ‘first schedule’of the Constitution of India as the 15th Indian state. But in contrast to other states ofthe union, Jammu and Kashmir enjoys a special autonomous status. Part VI of the Constitution of India which deals with the ‘States’ is not applicable toJammu and Kashmir.
All the activities in the State of Jammu and Kashmir are governed by the Constitution of Jammu and Kashmir, which establishes the framework of government at state level. The authority of the Parliament of India to make laws for Jammu and Kashmir is governed by the Article 370 of the Constitution of India. This provision was designed to be a ‘gate’ through which Constitution of India could legally be applied to the State of Jammu and Kashmir.
A. Introduction
United Nations was established as an intergovernmental organisation after the Second World War (1939-45) which had the task of promoting international co-operation and international order. According to one of the objectives of UN, colonialism was an undemocratic practice. So,with the change of leadership in Britain, it was thought that the aspirations of people of colonies should be respected and thus demand of the people of India was also conceded by the British Government and Indian Independence Act 1947 was passed by the British Parliament. According to the provisions of this act, India became independent from the British rule. But India was divided into two dominions, viz. the Dominion of India and the Dominion of Pakistan. Section 1 of Indian Independence Act 1947 provided -
1.-(1) As from the fifteenth day of August, nineteen hundred and forty-seven, two independent Dominions shall be set up in India, to be known respectively as India and Pakistan. (2) The said Dominions are hereafter in this Act referred to as the new Dominions ", and the said fifteenth day of August is hereafter in this Act referred to as “the appointed day ".
After the formation of two dominions, the princely states had to accede to any one of the dominions. Under Section 7 of Indian Independence Act 1947, it was mentioned that those states which did not accede to either of the new dominions would become independent and sovereign.By the same Act, the ‘paramountcy’ over the Princely States ceased to exist. Paramountcy meant that the States accepted suzerainty of the British Government and the Government of India, to carry out directions given to them by the Government of India. With the lapse of ‘paramountcy’, the suzerainty of British Government came to an end.
B. Position of Jammu and Kashmir after the lapse of paramountcy
According to the Section 7(b) of the Indian Independence Act 1947, any treaty which was subsisting between the British Government and the rulers of Indian States would come to an end.
Thus, after the enactment of this act, the validity of the ‘Treat of Amritsar 1846’, which was signed between the British Government and Maharaja Gulab Singh Dogra, came into question. By Article 1 of the Treaty, Gulab Singh acquired "all the hilly or mountainous country with its dependencies situated to the eastward of the River Indus and the westward of the River Ravi including Chamba and excluding Lahul, being part of the territories ceded to the British Government by the Lahore State according to the provisions of Article IV of the Treaty of Lahore, dated 9th March, 1846." Hence it was believed that Gulab Singh became the sovereign ruler of the territory. But this was not the true case. Article 4, 5, 6, 7 and 10 of the Treaty point towards the conclusion that he actually did not become a “sovereign ruler”. Moreover, the Treaty of Amritsar was ‘in force’ at the time of ‘lapse of paramountcy’ and it thus attracts the provisions of Section 7(b) of the Indian Independence Act 1947. Thereforewe can say that the Treaty of Amritsar ceased to exist after the passing of the Act and it ended Gulab Singh and his heirs’ authority over the territory as well. Thus, many experts question the authority of Maharaja Hari Singh to execute the ‘Instrument of Accession’.
C. Instrument of Accession
There were two options for the princely states, including Jammu and Kashmir. They could either choose to remain independent sovereign states orjoin any of the dominions available, i.e. dominion of India and dominion of Pakistan. A princely state also had an option to maintain a ‘Standstill Agreement’ with both the dominions. The Maharaja of J&K desired a ‘Standstill Agreement’ with both India and Pakistan. Pakistan agreed to it while India showed its reluctance and instead asked Maharaja to send his representative to negotiate terms. The aim of Maharaja was to continue legal relations on all the existing matters. The Maharaja had signed a ‘Standstill agreement’ with Pakistan on 12th August, 1947 seeking their continuous trade relationship with his territory until he took his
decision on the status of his territory. The polity was undisturbed until during the early days of October 1947 when tribesmen from Pakistan started occupying western parts of Jammu and Kashmir. The Maharaja also faced armed rebellion in the Poonch sector. In order to safeguard his territory from such protests, he approached the Government of India for help but was denied help straightaway since he had not signed the ‘Instrument of Accession’ and acceded to the dominion of India.
Thus, on October 26, 1947, ‘Instrument of Accession’ was signed by Maharaja Hari Singh with an underlying condition that the final accession will be determined by the people of Jammu and Kashmir, and this was accepted by Lord Mountbatten. By this instrument, the State of Jammu and Kashmir acceded to the Dominion of India and the power of the Dominion to make laws was restricted to the matters mentioned in the Schedule namely Defence, Foreign Affairs and Communications and a few ancillary subjects specified in the Schedule. Other than this, they were not bound to accept any future Constitution which might be framed by Union of India (clause 7 of the Instrument).
However, the Indian Independence Act 1947 provided that “an Indian State shall deemed to have acceded to Dominion if the Governor-General has signified his acceptance of an Instrument of Accession executed by the Ruler thereof.” The Governor-General of India Lord Mountbatten accepted the instrument which was accompanied by a condition, laid down in the letter appended to it, that the final choice will be that of the people of Jammu and Kashmir. There have been controversies regarding the very acceptance of this Instrument of Accession. Pakistan contended before the Security Council that the acceptance was a conditional one and thus was invalid as such an acceptance was not recognised by the Indian Independence Act 1947. India contended that the acceptance was valid and unconditional because the letter appended to the instrument was a personal letter written by the ruler to the Governor-General and had no legal effect.
D. Framing of Article 370
At the time of framing of the Constitution of India, all the princely states were invited to send representatives to India’s Constituent Assembly, and were encouraged to set up their own constituent assemblies for the state. Eventually all states, except Jammu and Kashmir, accepted the Constitution of India as their own constitution. On the other hand, the Regent of Jammu and Kashmir, Karan Singh, issued a proclamation which restricted the application of Constitution of India only to those subjects which were specified in the annexure appended to the ‘Instrument of Accession’. While the Constitution was being drafted, negotiations were under way between the Government of India and the Government of Jammu and Kashmir. In order to give a suitable place
to the ‘Instrument of Accession’ in the Constitution of India, Article 370 was incorporated into the Indian Constitution as a ‘temporary provision’. The Constituent Assembly of Jammu and Kashmir was empowered to recommend the articles of the Indian constitution which should be applied to the state, or to abrogate the Article 370 altogether and accept the Indian Constitution.
II. ANALYSIS OF THE PROVISIONS OF ARTICLE 370
Article 370 was incorporated in the Part XXI of Indian constitution, i.e. Temporary, Transitional and Special Provisions.
Article 370(1) starts with a non-obstante clause which reads “notwithstanding anything in this constitution”. This implies that in case of conflict with any other provision of Indian Constitution, Article 370 will prevail.
370(1)(a)states that the provisions of Article 238 shall not apply to the State of Jammu &Kashmir. Article 238, which was repealed by the Constitution (Seventh Amendment) Act, 1956, was incorporated in the Part VII of the Constitution to deal with the Part B States, i.e. ‘princely states’ which joined the Union of India after signing the ‘Instrument of Accession’. But Jammu & Kashmir was not included in these states due to special circumstances. Thus, this article of Constitution was madeinapplicable to the State of Jammu & Kashmir, instead Article 370 was incorporated.
370(1)(b) describes the extent to which the Indian Parliament can make laws for the State of Jammu & Kashmir. The use of words “shall be limited to” highlights the non-absolute power of Parliament to make laws in the Union List and Concurrent List in case of the State of Jammu & Kashmir. The poweris limited to only those matters which satisfy the criteria laid down in the clause, which is as follows:
- a declaration is to be made by the President - in consultation with the Government of the State, in case of those matters which correspond to the matters specified in the Instrument of Accession governing the accession of the state, or - after obtaining the concurrence of the Government of the State in case of the ‘other matters’ in the Union and ConcurrentLists.
In the above context, it will be pertinent to mention the three most important orders of the President of India which were passed with the concurrence of the Government of the State:
1. Presidential order of 1950 - It listed out certain subjects of the Union List (38 out of 97) and articles of the Indian Constitution that corresponded to the Instrument of Accession as required by clause b(i) of Article 370 and they were extended to the State of Jammu and
Kashmir, with modifications and exceptions as agreed by the state government. 2. Presidential order of 1952 - Article 370 was amended by this order and the phrase "recognised by the President as the Maharaja of Jammu and Kashmir" was substituted by "recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat". 3. Presidential order of 1954-It further expanded the law-making powers of the Parliament with respect to the State of Jammu & Kashmir. Important provisions such as Indian Citizenship, Jurisdiction of Supreme Court of India, Fundamental Rights, Emergency Powers, Financial Relations, etc. were extended to the State. It also introduced Article 35A which provided special privileges to the permanent residents of the state with regard to immovable property, settlement and employment in the state.
Many other orders were also passed subsequent to the above orders, which were issued as amendments to the Presidential Order of 1954. However, the validity of the Orders passed after the dissolution of the State’s Constituent Assembly remains controversial.
370(1)(c)provides that only the provisions of Article 1 (which defines the components of Union of India) and Article 370 itself shall apply to the State of Jammu & Kashmir.
370(1)(d)lays down that the other provisions of the Indian constitution can be applied to the State, subject to exceptions and modifications, as thePresident may by order specify. Such an order may be issued by the President subject to the following conditions:
- Where the order related to matters specified in ‘Instrument of Accession’, consultation with the Government of the State is necessary; - where the order relates to matters not specified in the ‘Instrument of Accession’, concurrence of the Government of the State is necessary.
Article 370(2) provides that if the Government of Jammu and Kashmir gives its concurrence for the enlargement of the powers of the Union Parliament on matters which are not covered by schedule attached to Instrument of Accession or for an application of those provisions of the Constitution of India which do not correspond to the matters specified in Schedule attached to Instrument of Accession before the convening of the State Constituent Assembly, it should be placed before such Assembly for such decision as it may take thereon.
Article 370(3) provides that on the recommendation of the Constituent Assembly of Jammu & Kashmir, the President may, by public notification declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify. Now after the dissolution of the Constituent Assembly of the State in 1957, this
clause is no longer operative in reality.
III. ROLE OF JUDICIARY
The judiciary over the past many years has been playing an active role in determining the validity of various issues in respect to Article 370 and the State of Jammu & Kashmir. Some of the landmark cases have been discussed below.
1. Prem Nath Kaul v. State of Jammu and Kashmir The Court held that Article 370 vested authority in the Constituent Assembly to decide the relationship that the State wanted to establish with India. It also observed that the continuance of the exercise of powers conferred on the Parliament and the President by the relevant temporary provision of Article 370 (1) was made conditional on the final approval by the said Constituent Assembly in the said matters. The constitution makers were anxious that the said relationship should be determined by the Constituent Assembly of the State itself.
2. Puranlal Lakhanpal v. The President of India and others The Supreme Courtrefused to interpret the word ‘modification’ as used in Article 370 (1) (d) in any “narrow or pedantic sense”. The court observed: “We are therefore of opinion that in the context of the Constitution, we must give the widest effect to the meaning of the word ‘modification’ used in Article 370(1) and in that sense, it includes an amendment. There is no reason to limit the word ‘modifications’ as used in Article 370(1) only to such modifications as do not make any ‘radical transformation’.”
3. Sampat Prakash v. State of Jammu and Kashmir The petitioner challenged certain order which was passed by the President under Article 370 (1). He contended that Article 370 could only have been intended to remain effective until the Constitution of the State was framed and thereafter it must be held to become ineffective, and that any modification made by the President subsequent to the enforcement of the Constitution would be without the authority of law. The above argument was rejected by the Supreme Court and it was held that Article 370 should be held to be continuing in force, and that the purpose of introducing this article was to empower the President to exercise his discretion in applying Indian Constitution.
4. Mohd. Maqbool Damnoo v. State of Jammu and Kashmir
The Jammu and Kashmir Preventive Detention (Amendment)Act, 1967 after being passed by the Legislative Assembly received the assent of the Governor of Jammu and Kashmir. The petitioner was detained under the provisions of this Act by the order of District Magistrate. In a writ petition under Article 32 of the Constitution the petitioner contended that that Act was invalid as it was not assented to by the Sadar-i-Riyasat who alone was mentioned as Head of the State in Explanation to Article 370(1)(ii). The court held that “it seems to us that the essential feature of article 370 sub-clauses 1(b) and (d) is the necessity of concurrence of the state government. What the state government is at a particular time has to be determined in context of the Constitution of Jammu and Kashmir. The explanation did no more than recognise the constitutional position, as it existed on that date and explanation, as substituted from November 17, 1952, alsodid no more than to recognise the constitutional position in the State.” The court held that as the Constitution of J&K after amendment in 1965 provided for Governor as head of the state, it should automatically bear that meaning. Also, the explanation ceased to operate because there is no longer any Sadar-i-Riyasat of Jammu and Kashmir.
5. State Bank of India v. Santosh Gupta and Anr. Appeal was filed against the decision of J&K High Court which held that provisions of SARFAESI are not applicable to the state of J&K because they are outside the legislative competence of Parliament, as they are in conflict with Section 140 of the Transfer of Property Act of Jammu & Kashmir, 1920. The court held that the SARFAESI Act has to be read with Constitution of India and Constitution of Jammu & Kashmir. Constitution of India is superior to the Constitution of J&K and thus, the provisions of SARFAESI Act are applicable to the State of J&K. The court reiterated that the State of J&K for historical reasons enjoys a “special position” in the Union of India among the States & that Article 370, though was intended to be temporary or transitional, has become a “permanent feature of the Constitution” since Article 370(3) says that without recommendations of the Constituent Assembly of the State, Article 370 could not be abrogated. Since the State’s Constituent Assembly was dissolved on 25-01- 1957 without making such a recommendation, Article 370 has stayed permanently in the Constitution.
Other points laid down by the judiciary: -
• In October 2015, the High Court of Jammu and Kashmir ruled that the Article 370 cannot be "abrogated, repealed or even amended." It explained that since the Constituent Assembly of the
State did not recommend its abrogation before the dissolution in 1957, Article 370 has taken on the features of a "permanent provision" despite being titled a temporary provision in the Constitution. • However, the Supreme Court in December 2015, while dismissing a PIL filed by a lawyer BP Yadav, said that only Parliament can take a call on scrapping Article 370 that accords special autonomous status to Jammu andKashmir. The Court held, “we can strike down a provision if it is unconstitutional but we cannot be asking Parliament to remove a provision.”
IV. ARTICLE 370versus CONSTITUTION OF JAMMU AND KASHMIR
The marginal note of Article 370 reads, ‘Temporary provisions with respect to the State of Jammu and Kashmir’. By this, we can infer that the framers of our Constitution did not intend to make it a permanent feature of the Indian Constitution. During a debate in the Constituent Assembly which took place on 17th October 1949, Maulana Hasrat Mohani asked a question as to why the State of Jammu and Kashmir was being treated differently. Gopalaswami Ayyangar replied to it by saying that such a discrimination was due to the special conditions of Kashmir and that the state was not yet ripened for such kind of integration.
Gopalaswami Ayyangar’s address to the Constituent Assembly brings out two dimensions in which Union of India committed itself towards the people of Kashmir:
a) A plebiscite, in case conductive situation to that end is available. b) A Constituent Assembly, which will frame a Constitution for the State of J&K and further decide upon the fate of Article 370 and thus the nature of the relationship with Union of India.
Therefore, it can be said that Article 370 was added in the Constitution just to govern a temporary arrangement till the final opinion of the people of Jammu and Kashmir was known. Also, it was the duty of the Constituent Assembly of the State to decide whether this article should be abrogated or not and the President of India was to act on such recommendation.
On May 1, 1951, a proclamation was issued by Yuvraj Karan Singhfor convening a Constituent Assemblyconsisting of representatives of people elected on the basis of adult franchise. The Constituent Assembly convened on October 31, 1951 with Karan Singh as Sadr-i-Riyasat and Sheikh Mohammad Abdullah as the Prime Minister. Constitution of Jammu and Kashmir was drafted which came into force on 26 January 1957. Part II, section (3) of the Constitution of J&K states “The State of Jammu and Kashmir is and shall be an integral part of the Union of India”. But on the same day, the Constituent Assembly dissolved itself. Under clause (3) of Article 370, the Constituent Assembly was entitled to recommend the abrogation of Article 370 to the President of
India, who then would issue an order under the same clause. But since the assembly dissolved itself without recommending the abrogation, now the Article 370 is seen as a permanent feature by many since the only authority which could recommend its abrogationhas ceased to exist.
V. CONCLUSION
The matter of special status to Jammu &Kashmir through Article 370 has flared constant debates. Different people and legal experts have expressed different views on theissue. How can a temporary provision become a permanent feature of the Indian Constitution, is the most frequently asked question by the people. Constitution of Jammu & Kashmir as drafted by the then Constituent Assembly says that the State of Jammu and Kashmir is an integral part of the Union of India. But the dissolution of the Constituent Assembly of Jammu and Kashmir without recommending the abrogation or continuance of Article 370 to the President of India has been the biggest hindrance in the whole debate over the abrogation of Article 370.
How can Article 370 be removed?
According to many legal experts, Article 370 can be repealed using the power conferred to the Parliament of India under Article 368 (Power of Parliament to amend the Constitution and procedure therefor).Article 368(1) reads: “Notwithstanding anything contained in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this Article.” The amending power under Article 368 is plenary and in exercise of it, Parliament may delete Article 370.
In the view of former Union Law minister Shanti Bhushan, obtaining the opinion of the Supreme Court is a must before going ahead with the abrogation of Article 370 since the power of Parliament to amend the Constitution does not extend to amending the basic structure of the Constitution andthere are doubts over whether Article 370 is a part of the basic structure of the Constitution or not. On the other hand, Supreme Court of India in 2015 said that only the Parliament can take a call on its removal.
Other view is that since the recommendation of the Constituent Assembly was necessary for the abrogation of Article 370, after its dissolution, it has become a permanent feature and cannot be abrogated at all, even by Article 368.Moreover, any attempt to abrogate it shall render the Instrument of Accession as null and void. This was expressed recently by the former Chief Minister of J&K and also the PDP Chief Ms. Mehbooba Mufti. Senior Advocate Rajiv Dhavan also expressed a similar view that Article 370 cannot be removed as it will jeopardise the very basis of accession. In the words of former Chief Justice of Jammu and Kashmir High Court, “If Article 370
was abrogated, then technically and legally the foundation of Jammu and Kashmir’s accession to India would cease to exist”. According to A.G. Noorani, neither India nor the State of J&K can unilaterally scrap the Article except in accordance with the terms of Article.
With Mr. Amit Shah as the Union Minister for Home Affairs, all eyes are on the new government, who had put “removal of Article 370” as a key poll promise in their party’s manifesto of 2014 and 2019.On 28th June 2019, he remarked in the Lok Sabha that Article 370 was temporary in nature, not permanent.
Thus, we can conclude that the whole process of modification or removal of Article 370 is quite precarious and if it ever goes through the Parliament, there will certainly be judicial intervention where the Supreme Court will have to provide its interpretation of the validity of the amendment in question.
POOR ACCESS TO RIGHT TO HEALTH IN INDIA
- pooja gurjar
ABSTARCT One of the basic human right and fundamental right is Health. Degradation of Health is becoming a common phenomenon in India these days. The right to health has been relevant for all States. Therefore, States have ratified international human rights treaty recognizing the right to health. Moreover, States have also adopted variousinternational declarations, domestic legislations and policies, and international conferences to commit themselves to protect this right. In India the supreme law to govern the whole nation is the Constitution of India. There is various provision in the Constitution with respect to health of public. Further the Apex Court of India has played significant role in protecting health of people at large through numerous decisions. Despite all the legislation and programs conducted by the government, government has not been able to achieve the intended goal due to several reasons like corruption involved in the programs, insufficiency of funds etc. Thus, there is a need to eradicate them inorder to make these programmes and plans effective. This paper has special emphasis on the access of public to right to health and some suggestions how the goal of proper right to access can be achieved.
KEY WORDS Right to Health, Fundamental Rights, World Health Organisation, Human Right Council.
INTRODUCTION According to Rangnath Misra, J. “A healthy body is a very foundation for all human activities. That is why the adage‘Sariramadhyam khalu dharma sadhanam’.” In a welfare state therefore it is obligation of the state to ensure the creation and sustaining of conditions congenial to health.i Health is a common theme in most cultures and civilizations. In fact, all societies have their concepts of health, as part of their culture and civilization. The earliestdefinition of health is the "absence of disease". In some communities, health and harmony are considered equivalent, harmony being defined as "being at peace with the self, the community, God and cosmos". The ancient Indians and Greeks shared this concept and attributed disease to disturbances in bodily equilibrium of what they called "humors".ii Health does not mean absence of disease, according to World Health Organization, “Health is a state of complete physical, mental, and social well – being and not merely the absence of disease”.iii This is an all accompanying to disease. There has been criticism that using such a yardstick very few people would be categorized as healthy since almost every one clinical, sub clinical, pathological are biochemical sense. Health is the universally recognized as essential to the human condition. A healthy physique and mind, apart from being the concern of the individuals, is also the concern of the entire community, because without a healthy population no sustainable economic scientific & technological development is possible. Moreover, an individual’s health is directly related to the enjoyment of all other human rights, and is a precondition of full participation in social, political & economic life. Thus applying the rhetoric of Human Rights to health problem is a powerful tool for advancing, well-being. Recognizing health as human rights demonstrates that health has a special importance to life & survival of individuals. Health and its interdependence with other human rights have been recognized at the international level. The provision of constitution of W.H.O. provided the first documentary recognition of the Right to Health, which guaranteed highest attainable standard of health as human right.ivThis legal recognition was enforced by Article 25of the UDHR.v As health is related to better condition of life along with the growth of human rights the
component of health logically entered the concept of dignified life. It is universally perceived that human rights can flourish only with social justice. In the health front the concept of social justice helps the poor overcome the economic disabilities in having access to health care system, and compels the state to take effective preventive facilitative and curative measures through a network of health service system. In ancient India, health care system was governed by the dharma because India is a spiritual country. We look so many examples in our human behavior in a day, such as some trees (Peepal, Neem, Tulsi, etc. ) are divine, the material used in Hawan is mixture of jadibuties, the smoke arising from this Hawan as environment cleaner, Ornaments and Ratnas are also used to cure to disease; we have so many examples.Every family has been adopting indirectly health care system. They take every day garlic, onion, turmeric, ginger in their food. They all are cures for disease.vi Health care in India can be traced back nearly 3,500 years. From the early days of Indian history, the Ayurvedic tradition of medicine has been practiced. During the rule of Emperor Ashoka Maurya (third century BC) school of learning in the healing art work was created. Many valuable herbs and medicinal combinations were created. Many of these continue to be used even today.vii
RIGHT TO HEALTH AND CONSTITUTION OF INDIA:
The Constitution of India recognized health as fundamental human rights. The provision of Article 21 of the Constitution of India has been judicially interpreted to expand the meaning and scope of right to life that it includes right to health and make it enforceable by virtue of the constitutional remedy available under Articles 32 and 226. Part IV of the Indian constitution i.e. Directive Principles of State Policy are of relevance perspective of Right to Health. Article 39, 42, 47, 48-A secures that state shall in particular, direct its policy towards securing health of the nation.viii State organised village panchayats and gave such powers and authority to function as units of self-government.
After independence health care in India is the responsibility of constituent states and territories of India. The Constitution impose duties on every state to raise the level of nutrition and the standard of living of its peoples and the improve public health as among its primary duties.ixThe national health policies were endorsed by the Parliament of India in 1983 and updated in 2002 and 2017. The goal of the NHP-2017 is to “achieve the highest possible level of good health and well-being for all Indians through a preventive and promote healthcare orientation in all development policies, and to achieve universal access to good quality health care services without anyone having to face financial hardship as a consequence.”x
INTERNATIONAL PERSPECTIVE ON RIGHT TO HEALTH The right to health is a fundamental part of our human rights and of our understanding of a life in dignity. The right to the enjoyment of the highest attainable standard of physical and mental health, to give it its full name, is not new. Internationally, it was first articulated in the 1946 Constitution of the World Health Organization (WHO), whose preamble defines health as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”. The preamble further states that “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.” The article 25 of Universal Declaration of Human Rights, 1948 also mentioned right to health as part of an adequate standard of living. Further International Covenant on Economic, Social and Cultural Rights, 1966 again recognized right to healthas a human right.Since then, other international human rights treaties also started recognizing or referring to the right to health or to elements of it, such as the right to medical care.xi In recent years, high observation has been made to the right regarding the highest attainable standard of health, for instance by human rights treaty monitoring bodies, by WHO and by the Commission on Human Rights (now replaced by the Human Rights Council), which in 2002 created the mandate of Special Rapporteur on the right of everyone to the highest attainable standard of
physical and mental health. These initiatives have helped clarify the nature of the right to health and how it can be achieved.xii India is a member of United Nations and has ratified various international conventions, promising to secure health care rights of individual in society.
IDENTIFICATION OF THE PROBLEM No doubt India has acquired the status of a developing country but the glaring fact is India is basically an agricultural country. More than half of the population depends upon agriculture for their livelihood. Majority of the population live in remote villages are illiterate, socially backward and are the victims of ill-health due to many factors such as malnutrition inadequate safe drinking water and they are forced to live in unhealthy environment. These villagers face various difficulties over their health. They are sufferer due to their illiteracy unawareness and deprivation from the government side. No one has come so far their rescue so they may be uplifted and lead a dignified healthy life. People are working in hazardous industries and factories, risking their lives for want of care to their health. They themselves are oblivious of this fact. Those working in leather industries face lung problems. Those working in metal industries are continuously at the risk of losing their eyesight. This vulnerable population of our country is deprived of primary health care. The conditions prevailing in the urban areas too, do not afford a better picture. Even the meager literate population fully aware of their rights and duties are suffering from many ailments due to ill health they become handicap due to lack of comprehensive legislation. In comparison with many other developing countries morbidity and mortality rate is higher in India irrespective of the category to whichever category they belong whether child, adult or a person of advanced age. At present about 65% of Indian population lack access to essential lifesaving medicine despite India being recognized as a global drug manufacturer. According to the NSS survey the importance of financial reason for not treating illness has gone up sharply. The reason for this is infrastructural decline, privatization and introduction of user charges which has contributed for increase in health care cause. This has resulted in sharp increase in the drug prices and also in the issue of patents.xiii The Trade Related Intellectual Property Rights has played a negative role as far is India is concerned. The issue of drugs has shifted from the domain of health to the domain of trade- a situation made worse by the rise of multinational pharmaceutical that are trying to control an own knowledge in the name of Intellectual Property Right. The neglect of public health is the cause of concern not only at the national level but also at the international platform. Countries worldwide have witnessed major transition in their political, economic and social conditions. The policy route to comprehensive and universal health care has failed miserably. It is now time to change gears towards a right based approach the opportunity exists in the form of constitutional provisions and discourse, to international laws to which India is a party, and the potential of mobilizing civil society and creating socio-political consensus on the right to health care. All these have to be bundled into a comprehensive health care at the international platform. India today is claiming to be one of the developing countries of the world. There are various fields in which India has achieved great heights i.e. in 3G and 4G mobiles. Information technology is standing at par with one of the most advanced countries of the world. India is also heading towards achieving everything required for globalization including a demand for a permanent seat in the United Nation. India has achieved great heights within a span of six decades since independence. This is great achievement for any democratic country. Keeping in mind that the Indian government is spending a large sum of money for the defense, agricultural development, infrastructural cultural developments and other walks of life. Negligible amount of the GDP has been spent in human care. Probably this field has 80% of the total medical graduates either joint, private or is the true victims of brain drain and serves the Nations abroad who attract them with big bucks and innumerable facilities. Like any other private sector health sector is very large in India.
It has constantly been regulated since independence and there seem to no improvement in the near future. Bills are introduced in the Parliament but there is scarcely any bill on right to public health has come to known to the general public. If we just make analysis of child death rate with our immediate neighbor. We come to know that in Bangladesh the death is 32.4/1000, in Bhutan 30.8/1000, in Nepal 33.7/1000 in China 9.3/1000, in Sri lanka 8.8/1000. India ranks first as the death rate in highest i.e. 39.4/1000 when we claim to be advancing in every field.xiv NSS data which is supposed to be the most authenticated data reveals that only 1.4% of the total GDP is spent in public health.xv The strong point to be noted is that the poor classes contribute a disproportionately higher amount of their income in access see health care services both in the private sector as well as in the public sector. Therefore, the inference can be drawn that because of corruption involved in programmes and plans run by the Government, we are not able toachieve the intended goal. Therefore, there is need to eradicate it in order to make these programmes and plans effective. It is also supported by the The Supreme Court in consumer Education and Research Centre and others V. Union of India and othersxvi has held that- “There are many complaints that the staff of the Government Hospitals are often in collusion with the Doctors who run private nursing homes and deliberately do not look after the patients who some to Government Hospitals so that they may be driven to go to private nursing homes and they often advise patients to go to particular nursing home. All this needs to be thoroughly investigated. This is a welfare state, and the people have a right to get proper medical treatment. In this connection, it may be mentioned that in U.S.A. and Canada there is a law that no hospital can refuse medical treatment of a person on the ground of his poverty or inability to pay. In our opinion, Article 21 of the Constitution, as interpreted in a series of judgments of the Supreme Court, has the same legal effect.”
THE FOLLOWING RECOMMENDATIONS ARE IMPORTANT TO MAKE THE EASY AND SMOOTH ACCESS TO RIGHT TO HEALTH-
1. Substantial increase in Central Budgetary provisions for Public health, to be increased to 5- 10% 2. The local government should be vested with adequate power and responsibilities and should be provided with sufficient funds. 3. New strategy should be developed for pooling all financial resources in the health sector like Cess. 4. There should be absolute transparency in the decision making process relating to the health care. 5. There should be access to adequate and clean safe drinking water and housing and sanitation facilities, a clean and sustainable environment, a drug industry to produce essential drugs at reasonable cost. 6. Essential drugs should be brought under price control and volumes needed for domestic consumption must be compulsorily produced to fit into demand and supply jacket. 7. The medical councils should be endowed with the responsibility of creating awareness programs at the local levels. 8. There should be all east one seminar /symposium held every six monthly in each district. 9. Needs of senior citizen physically & mentally challenged, the under privileged should be looked after by the Medical Council and it should be made accountable to the community.
10. Enactment of National Public Health Services Act, recognized and delineating the health rights of citizens, duties of the public health system and specifying broad legal and organizational mechanisms to operate these rights. This act would make mandatory many of the recommendations laid down, and would make more justifiable the denial of health care arising from systemic failures, as have been witnessed during the recent hearings.
CONCLUSION It is clear from the several survey report that though the maincause behind the poor access to Right to health is insufficiency of fund but it is not only cause for the problem. There are other causes too for the problem. The Constitution ofIndia does not explicitly recognize health as a fundamental right. The Supreme Court of India by dynamic interpretation of Article 21 of the constitution declared that right to health is implicit in right to personal liberty guaranteed under the constitution but there is neither any express provision in the Constitution of India nor there is any specific Act of Parliament.No court has yet said that the State is bound to provide free medical care to all the citizens. Another cause behind the problem is that Government hospitals are over- crowded and doctors are over- burdened so there is need to increase the no of Government Hospitals and doctors should be given handsome salary to prevent the problem of brain drain. There is need of trained medical and professional personnel receiving domestically competitive salaries.Thus, insufficiency of fund is not the sole reason behind Poor Access to Right to Health rather absence of specific legislation on Right to Health and corruption are also responsible for the said problem
REFERENCES
i Vincent Panikurlangara vs. Union of India AIR 1987 SC 990, 1987 SCR (2) 468. ii K. Park, Park’s Textbook of Preventive and Social Medicine, Banarsidas Bhanot Publisher. iiiSee https://www.who.int/about/who-we-aew/constitution. ivWorld Health Organisation , “The Right to Health” http://www.who.int. vArticle 25 of the Universal Declaration of Human Rights provides “(a) Everyone has the right to a standard of living adequate for the health and wellbeing of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the vent of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.” vi National Health Portal, India, “Spirituality and Health”, https://www.nhp.gov.in/. vii Carol Holtz, Global Health Care: Issues and Policies, Jones & Bartlett Publishers, 20/May/2016. viii Part III and Part IV of The Constitution of India. ixMahendra Pal Singh, V.N. Shukla’sConstitution of India, (2006) Eastern Book Company. xNational Health Policy-2017 xi International Covenant on Social and Political Rights (1966) and its two optional protocols (1966 and 1989) xiiUnited Nations Human Rights, Office of the High Commissioner, “Special Rapporteur on the right of everyone of the highest attainable standard of physical and mental health”, www.ohchr.org xiiiNational sample Survey office by Ministry of Statistics and Programme Implementation, Government of India. xivGlobal Childhood Report, 2019. xvThe Hindu, “indian’s per capita expenditure on heath remain among the lowest in the world”, dated 7/ Februray/2019. xviAIR 1997 (2) SCC 83.
THE ADMISSIBILITY OF EXPERT EVIDENCE IN INDIAN JUDICIAL SYSTEM BY ADVOCATE SATYAJIT J. LONKAR (B.S.L., LL.M.) Research Scholar of Jaipur National University.
ABSTRACT: The opinion of experts is generally admissible as evidence under Section 45 of the Indian Evidence Act. This evidence usually plays an important role in many cases where technical aspects are involved. This is particularly true in medico legal cases. The rationale behind the same is that it is not practical to expect the Judges to have adequate knowledge in medical issues. Hence, the parties bring in experts who are qualified and sufficiently equipped in that field as witnesses to prove their stand. But there are various problems and challenges in admitting expert evidence. In many cases, there has been misuse of expert evidence. This is mainly because of the lacuna in law and the ambiguity in the definition of an “expert” There is also strong ignorance in India. The parties do not realise that producing expert evidence is their right. Generally, people are of the opinion that it is the duty of the court to call an expert witness. Hence, this right is not exercised. The court can call an expert, but it is not necessarily bound to call any expert for their opinion. In this paper, the researcher has tried to analyse the concept of expert opinion in comparison with the law relating to expert opinion in the United Kingdom. The researcher has also focused on the challenges regarding the admissibility of expert evidence and how it has lead to miscarriage of justice in certain cases. This is a doctrinal study and the researcher depends on secondary data like books, websites, journals and case laws to provide a comprehensive and holistic approach towards the study.
INTRODUCTION: The general rule is that the opinion of persons or the beliefs of the witnesses are not admissible in the Court.xvi It is based on the concept 'Best Evidence Rule'. The cardinal principle of the evidence law of evidence is that the best evidence should be adduced and presented before the court of law. In simpler terms, best evidence means that evidence which is got through a direct source. This kind of evidence is admissible. This rule is to ensure that justice is delivered and the Judge’s time is also not wasted.xvi Witnesses are those people who report the facts. The term ‘facts’ here means and contains only facts. Opinion, beliefs, ideas, etc are not bought into its ambit. It should be understood that these facts must be perceived by the witness through one of his five sensesxvi. But hearsay evidencexvi is generally not admitted in the Court of law. This evidence must be out of the direct knowledge of the person. Evidence of an eye witness is usually considered as a direct evidence.xvi Such evidences are considered unreliable and hence is not admissible. Hearsay Evidence simply means the evidence of an
unexamined person. In some cases where the technical aspects are questioned, then in such cases, an expert opinionxvi can be bought in by either of the parties to the suit. Such evidence are known as expert evidence. The earliest use of an expert witness in English law came in the year 1782. A court was hearing a litigation which was related to the silting-up of Wells harbour in Norfolk. The Court in this case accepted the evidence from a leading civil engineer. The Court’s decision to accept the civil engineer’s evidence is widely considered as the origin of the modern rules on expert testimony. But there existed ambiguity on is usage which was later put to rest by Lord Justice Patrick Devlin in the case of suspected serial killer Dr. John Bodkin Adams in the year 1957.xvi The expert evidence is usually admitted based on the principle of necessity.xvi Another prerequisite in admission of expert evidence is that the person should really be an expert. But the Judge is not necessarily bound to give a judgement based on the evidence. Section 45 of the Indian Evidence Act of 1872 deals with the opinions of experts and they are considered relevant if it is on foreign law, science, art, identity, handwriting or finger impressions. The aim of the present study is to do a comprehensive analysis on the admissibility of expert opinion in India and its evidentiary value.
RESEARCH METHODOLOGY: The researcher has followed secondary data collection. This is a doctrinal study. The researcher has also utilized commentaries, books, treatises, articles, notes, comments and other writings to incorporate the various views of the multitude of jurists, with the intention of presenting a holistic view. The researcher has made extensive use of Case Laws in this paper, so as to discern a trend in the judicial pronouncements.
RESEARCH QUESTION: Whether there is lacuna in law regarding expert testimony in the Indian Evidence Act of 1872?
REVIEW OF LITERATURE: The rule for admitting evidence is that the beliefs and opinion are disregarded as they hinder the process of delivering justice. The author introduces the readers to the concept of expert evidence and how it is an exception.(Malek) The author gives a clear comparison as to why eye witness is a direct evidence and is preferred over other forms of witnesses.(Starrett) In this book, the author has particularly focused on the development of expert evidence and the case of serial killer, Dr. John Bodkin Adams where the Court relied on expert evidence. This marked the start of expert evidence. (Cullen) In this volume, the author compares law and science and how they are truly dependent on each other. Science plays a major role in crime detection as it relies on many scientific methods which helps in finding the criminal. (Reece) The term ‘expert’ has always been open to debates as there has
been no standard definitions for the same. In this book, the author has tried to give a comprehensive understanding of the term, ‘expert’ for the readers’ understanding. (Monir) In this book, the author makes a deep analysis on the requirement of an expert witness. He feels that an opinion is needed only if the expert possesses greater knowledge than the jury or the judge deciding the case. (Wigmore) The author in this book touches upon self-incriminatory evidence and its admissibility in the United States. The laws are such that no man can be forced to give evidence against himself or his spouse. (Choo) In this general, the author has tried to understand the evidentiary value of expert witness in India and the nature of such witness. (Krishna Kumari and Kumari) In this book, the author is concerned about the probative value of expert evidence and its admissibility in the Courts. He has focused on the importance given to expert opinion in India. (Dinkar) In the modern world where crimes are being conducted in a highly technical manner, the author feels that scientific methods must be employed to detect crimes. This means the value given for expert witness must be increased. (Rao and Rao)
OBJECTIVES: 1. To study about the admissibility of expert evidence. 2. To compare expert witness in India, US., and England. 3. To study the lacuna in law regarding expert witness.
HYPOTHESIS: The expert evidence in India is a weak evidence because of ambiguities and lacuna in law.
LACUNA IN LAW REGARDING EXPERT WITNESS - MEANING OF ‘EXPERT’: Based on Section 45 of the Indian Evidence Act of 1872, it can be inferred that “expert”xvi is a person who is qualified and skilled in the field of art, science, foreign law, handwriting or finger impression. The measure or degree of qualification has not been mentioned. It can be further inferred that such „adequate‟ knowledge has been gained through practice, observations or through studies. The ambiguity that exists here is that the law does not explicitly state who is an expert. Five areas or subjects have been mentioned but they are broad aspects and cover a wide range of subjects. Hence, it remains unclear. A question that now arises here is who is an expert? The law has been ambiguous by simply stating under Section 45 of the Indian Evidence Act of 1872 that a person specially skilled is considered an expert. This is a broad term without a clear understanding. The general meaning is that the term “expert” covers “persons who are specially skilled”. The term implies both superior knowledge and practical experience in the art or profession, but generally, nothing more is required to entitle one to give testimony as an expert than that he had been educated in a particular art or profession.xvi Various Jurists and scholars have attempted to define the term expert. Lawson has defined „expert‟ as a person who has some special knowledge and skill in the particular calling to which the enquiry relates.xvi Thus, it can be understood that experts are persons who have devoted
their time and study to a special branch of learning on which he/she is asked to state his/her opinion. An American jurist, Wigmore has spoken about an expert witness as follows, “...whenever inferences and conclusions can be drawn by the jury as well as by the witness, the witness is superfluous: and that thus an experts opinion is received because and whenever his skill is greater than the jury's…”.xvi From the above statement, one can infer that expert evidence is the evidence given by experts who possess some special knowledge on subject matter is beyond the range of common knowledge of the Court.xvi This statement clearly draws a line between expert evidence and lay opinion testimony. In both cases, only opinion is given. But an expert has more skill in his field and has years of practice and experience to his credit which sets him apart from the lay opinion testimony. Here, the exclusionary rule is applied. Hence, the lay opinion testimony is not accepted. But there are exceptions even to lay opinion testimony. Section 47xvi of the Indian Evidence Act of 1872 states that in the event of identification of the handwriting of a person, any person who has been acquainted with the person whose handwriting is in question can give an opinion. In this case, the term „any person‟ clearly means that the person need not be an expert. Mere acquaintance will also make him eligible to give opinion according to Section 47. But the Court has suggested three modes of proof in case of identification of handwriting in Fakhruddin v. State of M.P.xvi Firstly, by Direct evidence, secondly by expert‟s evidence and thirdly, by the court coming to the conclusion by comparison.xvi The next question here is how has the Court determined if a person is an expert? The test followed for the same by the Court is: “Is it peritus?”xvi Is he skilled? Has he adequate knowledge?xvi It is, therefore, left to the Judge to determine if a person is to be considered an expert based on the skill he possesses. But before such evidence can be considered, it must be proved that the person giving the evidence is an expert. If the Court later finds that the person who has given the evidence is not an expert, then the opinion of such persons will not be considered.
EVIDENTIARY VALUE OF EXPERT OPINION: The nature of expert witness in corroborative and not conclusive. Expert evidence is of two types - Opinion Evidence and Data Evidence. Data Evidence is generally given more weightage and precedence over opinion evidence. But in any case sole reliance cannot be placed on expert evidence. If the Judge completely relied on expert opinion, then it weakens the case. This is because even if a person is an eminent expert in his field, he is still not considered a direct witness. He has only adduced what might have happened. He is not a direct witness. Hence, his evidence is not conclusive in nature.xvi Secondly, corroborative evidence means that such evidence needs a primary evidence and it cannot survive alone. In cases where expert opinion is considered, there should be a primary evidence and the expert testimony can support it. If the expert opinion contradicts an unimpeachable eye witness or documentary evidence, then it will not have an upper hand over direct evidences.xvi Expert opinion is used only to help the Judge to form an independent opinion. Expert testimony by its very nature is considered weak and hence, cannot solely form the basis for a conviction. It should be taken
with due caution.xvi Thus, it is merely an advisory opinion as the Judge is not bound to accept the expert’s opinionxvi even after he fulfils the test of competency.
MEDICAL EVIDENCE AND OCULAR EVIDENCE: In the case, where the opinion of the medical expert and the evidence given by eye witness are inconsistent, then the expert evidence is disregarded. This is true even if the said person is an expert in his field. This is because the evidence given by eye witness becomes the direct testimony. The conflict between the two evidences was discussed by the Court in Bhagaban Barik v. State.xvi It has now become axiomatic that the medical expert evidence can supersede the direct testimony if it is so conclusive that it even rules out the possibility of the eye-witness version being true.xvi xviIn Golappa Avana Naik v. Statexvi, all the eye-witnesses stated that only one blow was given on the head of the accused. But the medical evidence on record showed that there were 4 external injuries. Hence, court held that the eye-witnesses had not seen the incident and the medical evidence persisted over the eye witness.xvi
FOREIGN LAW: Generally, the law which is not in force in India is a foreign law. It becomes a question of fact. But the personal laws are not foreign law and they should be interpreted by the Judges only. This is because they are the laws of the land.xvi Hence, the opinion of experts will be irrelevant in such cases.
FINGER- IMPRESSION: Generally, finger impression expert’s opinion is given more value because the fingerprints of any person remain the same from their birth till death and no two individuals‟ finger impression have been found to have the same pattern. Footprint studies are gaining importance nowadays but the courts have been reluctant to accept that as an evidence. BALLISTIC EXPERT: The opinion of a ballistic expert can be taken as a conclusive proof. They can prove that a particular cartridge was fired from a particular pistol.xvi
PROCEDURE REGARDING PRODUCTION OF EXPERT WITNESS: The first question with regards to the procedure is if the court should appoint the expert or should the discretion given to the parties. There is always a possibility of the expert being biased towards the party that has called him. In R v, Nowelly, Justice Humphreys has stated that "the expert is not a witness for the prosecution nor for the defence, but it is witness of the Court"xvi. Hence, the court should consider the appointment of an expert to ensure impartiality. The second question is regarding the decision in case of conflicting expert evidence. In such cases, usually, in all systems, the court has the discretion to prefer the evidence which seems best. The third question raised is if the experts
should submit any report in writing to the lawyers before appearing as a witness and, if, such reports should be made available to the court as well as the other party.xvi
COMPARISON OF EXPERT WITNESS LAW IN INDIA, U.S. AND ENGLAND:
Scope of ‘Expert Testimony’: Based on the comparison of the provisions regarding expert witness in the U.S., England and lndian laws, it is clear that both the US and the England are broad and far more wide. They include any matter for expert opinion, unlike India. There is no specific subject that has been provided for the experts to testify. The Judiciary is given the discretion (subject to certain restrictions) in choosing the areas. They have also widened the scope of the expression science or art by including trade or skill.xvi This broad term includes anyone starting from the surveyor to farmers, or even blacksmiths. But under Section 45 of the lndian Evidence Act, the term „trade‟ is not mentioned anywhere. The legislative intent may have been to expand the words "Science" or "art" and widen its scope. But that paves way to ambiguity. In Basudeo Gir v. State,xvi the question laid before the court was if the footprint evidence, which was the sole evidence in the case, could be made admissible under Section 45 of the Indian Evidence Act. The court gave a liberal interpretation to Section 45 and held that its ambit was wide enough to include the evidence given by the footprint expert. But again, the problem is that any new subject must be brought under the terms ‘science’ or ‘art’. Exclusionary Rules: The general rule as already mentioned is that the expert witness is deemed necessary only if the particular subject is beyond the scope of a prudent man. If it within the common knowledge of a person, then in such cases, expert opinion is not regarded. This is the position in India which is quite similar to the position in other countries. The fundamental rule is to not consider expert evidence if it does not help the Judges in interpreting the facts. In England, courts have been reluctant to admit any expert opinion regarding human behaviour, reactions and emotions. This is because of the view that previous experience is sufficient to understand any issue relating to human behaviour. In United States, in James Victor Salem v. United States Lines Companyxvi, it was pointed out that expert evidence can be excluded and deemed unnecessary by the Trial Judge if the facts and issues of the case can be properly explained to the Jury and the facts are of common understanding and if the Jury is able to decide based on it. But this rule has been criticised, especially, for disregarding expert opinion in human behaviour and psychology. Hence, the rule has been slightly relaxed in the England which was seen in R v. Robinsonxvi
Ultimate Issue Rule: The role of expert in any case is to provide the evidence to the Judge. But he cannot try and supersede the Judge. He cannot execute any judicial function. Hence, a witness shouldn’t disturb or modify the
ultimate issues in a case. This is called the ultimate issue rule. It is applicable to expert as well as lay witness. In lndia, the Judges were hesitant to surrender their own opinion to that of the experts. This was also discussed in State v. Pali Ram.xvi The position is same in England. In the US., expert opinion relating to ultimate issues are admissible in certain cases.xvi
Privilege against Self- Incrimination: This means that a person cannot be asked to incriminate himself. The privilege to not incriminate self is given to individuals. The fifth amendmentxvi of the U.S. constitution states no person shall be forced to be a witness against himself. By judicial Interpretation, the above provision has been given a broad connotation. This privilege has been extended to civil and criminal proceedings. In England, except in a few cases, no witness can be compelled to answer any question or to produce any document the tendency of which is to expose the witness (or the spouse of the witness), to any criminal charge, penalty or forfeiture.xvi In India, the question raised was if a person is asked to give his specimen handwriting or signature, or impressions of his finger, palm or foot to the investigating officer under Section 73 of the Evidence Act, then does it mean he is being forced to be a witness against himself under Article 20(3) of the Constitution? The court in State of Bombay v. Kathi Kalu Oghadxvi considered these questions and held that asking a person to give his specimen handwriting or signature, or impressions of his finger, palm or foot to the investigating officer does not violate Article 20(3) of the Constitution. Though they come under the meaning of evidence is the broader sense, they are not violative because these specimens cannot change or alter its intrinsic character by concealment of its true nature. They are also not in the nature of ‘personal testimony’ and hence is not violative of Article 20(3).
CONCLUSION & SUGGESTIONS: Firstly, the problem with expert opinion is that it is merely an advisory opinion. It is only corroborative and not a conclusive piece of evidence. The Evidence Act does not envisage any guidelines as to who can be termed as an expert? It merely mentions subject-matters in which opinion can be sought by the court of law. The definition of expert opinion is also missing. It has also not been mentioned in the Evidence Act on how the court of law will try to ensure that the opinion of the expert is not partial or that expert is not enthusiastic to prove the case of the prosecution. Secondly, the law on expert opinion in India is not a comprehensive one. This is why the expert opinion is considered a weak evidence. No proper stress has been laid on the professional qualification. Experience and skill has only been given predominance. The legislature must take efforts to bring in guidelines to ensure that the expert’s opinion can be relied on by the Court of law while deciding cases. This clearly proves the hypothesis. Thirdly, there should be some amendment regarding the procedure of production of expert witness as mentioned earlier. Consideration should be given on if the expert is to be appointed by the Court or by the party to the suit. Fourthly, in India, the expert witness is not given any
protection and is harassed in most cases. Steps must be taken to ensure that they are given protection. There is an urgent need to evolve an independent witness protection measures. This would largely focus on the witness, his contribution and his role in the trial. His security and his family’s must be given paramount importance. His identity must be protected, this is to ensure that his life is not affected by those people whose liberty depends completely on his remaining silent and not speaking in the court of law. Fifthly, scientific test must be given more weightage than eye-witness as there are lot of possibilities for the eye-witness to have been exaggerating facts and providing a distorted version of the real incident. Lastly, the role of expert witnesses in India is limited. It is not wide enough to be applied in all cases. Experts are appointed only after the other means of procuring evidence has been exhausted by the general investigation team and the Judge. So this causes is a delay in the case proceedings. Also, with the increasing efficiency in which the crimes are being committed nowadays, there is an imminent need to develop the forensics technology of the country by taking the advice of experts.